EXHIBIT 4
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
XXXX XX XXXXXXX COMMERCIAL MORTGAGE INC.,
Depositor,
BANK OF AMERICA, NATIONAL ASSOCIATION,
Master Servicer,
LNR PARTNERS, INC.,
Special Servicer,
and
XXXXX FARGO BANK, N.A.,
Trustee and REMIC Administrator
_________________________________
POOLING AND SERVICING AGREEMENT
Dated as of June 1, 2007
_________________________________
$3,172,686,516
Commercial Mortgage Pass-Through Certificates
Series 2007-2
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS; CERTAIN CALCULATIONS IN RESPECT OF THE MORTGAGE POOL AND THE
CERTIFICATES
Section 1.01 Defined Terms................................................
Section 1.02 Rules of Construction; Other Definitional Provisions.........
Section 1.03 Certain Calculations in Respect of the Mortgage Pool.........
Section 1.04 Cross-Collateralized Mortgage Loans..........................
Section 1.05 Incorporation of Preliminary Statement.......................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES; ORIGINAL
ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.................................
Section 2.02 Acceptance of REMIC I by Trustee.............................
Section 2.03 Mortgage Loan Seller's Repurchase or Substitution of
Mortgage Loans for Material Document Defects and
Material Breaches...........................................
Section 2.04 Representations and Warranties of the Depositor..............
Section 2.05 Representations and Warranties of the Master Servicer........
Section 2.06 Representations and Warranties of the Special Servicer.......
Section 2.07 Representations and Warranties of the Trustee and the
REMIC Administrator.........................................
Section 2.08 [RESERVED]...................................................
Section 2.09 Issuance of the Class R-I Certificates; Creation of the
REMIC I Regular Interests...................................
Section 2.10 Conveyance of REMIC I Regular Interests; Acceptance of
REMIC II by the Trustee.....................................
Section 2.11 Issuance of the REMIC II Certificates and the Class A-2FL
and Class A-JFL Regular Interests...........................
Section 2.12 Loss of Value Reserve Fund Provisions........................
Section 2.13 Designation of Grantor Trusts................................
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
Section 3.01 Administration of the Serviced Loans.........................
Section 3.02 Collection of Mortgage Loan Payments.........................
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Account; Servicing Advances; Reserve Accounts.....
Section 3.04 Certificate Account, Distribution Account, REMIC I
Distribution Account, REMIC II Distribution Account,
Excess Interest Distribution Account, Excess Liquidation
Proceeds Account, Class A-2FL Floating Rate Account,
Class A-JFL Floating Rate Account, Interest Reserve
Account and Whole Loan Custodial Account....................
Section 3.05 Permitted Withdrawals From the Certificate Account, the
Distribution Account, the Whole Loan Custodial Accounts,
the Class A-2FL Floating Rate Account, the Class A-JFL
Floating Rate Account and the Excess Liquidation
Proceeds Account............................................
Section 3.06 Investment of Funds in the Certificate Account, the
Interest Reserve Account, the Excess Interest
Distribution Account, the REMIC I Distribution Account,
the REMIC II Distribution Account, the Excess
Liquidation Proceeds Account, the Class A-2FL Floating
Rate Account, the Class A-JFL Floating Rate Account and
the REO Account.............................................
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage.......................................
Section 3.08 Enforcement of Alienation Clauses............................
Section 3.09 Realization Upon Defaulted Serviced Loans....................
Section 3.10 Trustee to Cooperate; Release of Mortgage Files..............
Section 3.11 Servicing Compensation; Interest on Servicing Advances;
Payment of Certain Expenses; Obligations of the Trustee
Regarding Back-up Servicing Advances........................
Section 3.12 Inspections; Collection of Financial Statements..............
Section 3.13 [RESERVED]...................................................
Section 3.14 [RESERVED]...................................................
Section 3.15 Access to Certain Information................................
Section 3.16 Title to REO Property; REO Account...........................
Section 3.17 Management of REO Property...................................
Section 3.18 Resolution of Defaulted Serviced Loans and REO Properties....
Section 3.19 Additional Obligations of the Master Servicer and the
Special Servicer............................................
Section 3.20 Modifications, Waivers, Amendments and Consents..............
Section 3.21 Transfer of Servicing Between Master Servicer and Special
Servicer; Record Keeping; Asset Status Report; Directing
Certificateholder...........................................
Section 3.22 Sub-Servicing Agreements.....................................
Section 3.23 Designation of the Special Servicer by the Majority
Certificateholder of the Controlling Class or the
Controlling Holder..........................................
Section 3.24 Confidentiality..............................................
Section 3.25 No Solicitation of Prepayments...............................
Section 3.26 Certain Matters with Respect to Serviced Loans Permitting
Defeasance, Franchise Mortgage Loans and Certain
Mortgage Loans Permitting Additional Debt...................
Section 3.27 Application of Default Charges...............................
Section 3.28 Matters Regarding the Whole Loans............................
Section 3.29 Matters Regarding the Non-Serviced Whole Loans...............
Section 3.30 Certain Powers of the Controlling Holders and Certain
Intercreditor Matters.......................................
Section 3.31 [RESERVED]...................................................
Section 3.32 Litigation Control...........................................
Section 3.33 Class A-2FL Swap Contract....................................
Section 3.34 Class A-JFL Swap Contract....................................
Section 3.35 [RESERVED]...................................................
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS AND RELATED MATTERS
Section 4.01 Distributions................................................
Section 4.02 Statements to Certificateholders; Certain Reports by the
Master Servicer and the Special Servicer....................
Section 4.03 P&I Advances.................................................
Section 4.04 Allocation of Realized Losses and Additional Trust Fund
Expenses....................................................
Section 4.05 Interest Reserve Account.....................................
Section 4.06 Excess Interest Distribution Account.........................
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.............................................
Section 5.02 Registration of Transfer and Exchange of Certificates........
Section 5.03 Book-Entry Certificates......................................
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates............
Section 5.05 Persons Deemed Owners........................................
Section 5.06 Certification by Certificate Owners..........................
Section 5.07 Regarding the Identification of Certain
Certificateholders..........................................
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER AND THE REMIC
ADMINISTRATOR
Section 6.01 Liability of the Depositor, the Master Servicer, the
Special Servicer and the REMIC Administrator................
Section 6.02 Merger, Consolidation or Conversion of the Depositor, the
Master Servicer, the Special Servicer or the REMIC
Administrator...............................................
Section 6.03 Limitation on Liability of the Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator
and Others..................................................
Section 6.04 Master Servicer, Special Servicer and REMIC Administrator
Not to Resign...............................................
Section 6.05 Rights of the Depositor and the Trustee in Respect of the
Master Servicer, the Special Servicer and the REMIC
Administrator...............................................
ARTICLE VII
DEFAULT
Section 7.01 Events of Default............................................
Section 7.02 Trustee to Act; Appointment of Successor.....................
Section 7.03 Form 8-K Information; Notification to Certificateholders.....
Section 7.04 Waiver of Events of Default..................................
Section 7.05 Additional Remedies of Trustee Upon Event of Default.........
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee............................................
Section 8.02 Certain Matters Affecting the Trustee........................
Section 8.03 Trustee Not Liable for Validity or Sufficiency of
Certificates or Loans.......................................
Section 8.04 Trustee May Own Certificates.................................
Section 8.05 Fees of Trustee; Indemnification of Trustee..................
Section 8.06 Eligibility Requirements for Trustee.........................
Section 8.07 Resignation and Removal of the Trustee.......................
Section 8.08 Successor Trustee............................................
Section 8.09 Merger or Consolidation of Trustee...........................
Section 8.10 Appointment of Co-Trustee or Separate Trustee................
Section 8.11 Appointment of Custodians....................................
Section 8.12 Access to Certain Information................................
Section 8.13 Maintenance of Mortgage File.................................
ARTICLE IX
TERMINATION
Section 9.01 Termination Upon Repurchase or Liquidation of All
Mortgage Loans..............................................
Section 9.02 Additional Termination Requirements..........................
ARTICLE X
ADDITIONAL REMIC AND GRANTOR TRUST PROVISIONS
Section 10.01 REMIC Administration.........................................
Section 10.02 Depositor, Master Servicer, Special Servicer and Trustee
to Cooperate with REMIC Administrator.......................
Section 10.03 Fees of the REMIC Administrator..............................
Section 10.04 Use of Agents................................................
Section 10.05 Grantor Trust Administration.................................
ARTICLE XI
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 11.01 Intent of the Parties; Reasonableness........................
Section 11.02 Succession; Subcontractors...................................
Section 11.03 Filing Obligations...........................................
Section 11.04 Form 10-D Filings............................................
Section 11.05 Form 10-K Filings............................................
Section 11.06 Xxxxxxxx-Xxxxx Certification.................................
Section 11.07 Form 8-K Filings.............................................
Section 11.08 Form 15 Filing...............................................
Section 11.09 Annual Compliance Statements.................................
Section 11.10 Annual Reports on Assessment of Compliance with Servicing
Criteria....................................................
Section 11.11 Annual Independent Public Accountants' Servicing Report......
Section 11.12 Indemnification..............................................
Section 11.13 Signatures; Article XI Notices...............................
Section 11.14 Amendments...................................................
Section 11.15 Non-Serviced Mortgage Loans..................................
Section 11.16 Certain Matters Relating to the Future Securitization of
the Pari Passu Companion Loans..............................
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment....................................................
Section 12.02 Recordation of Agreement; Counterparts.......................
Section 12.03 Limitation on Rights of Certificateholders...................
Section 12.04 Governing Law................................................
Section 12.05 Notices......................................................
Section 12.06 Severability of Provisions...................................
Section 12.07 Successors and Assigns; Beneficiaries........................
Section 12.08 Article and Section Headings.................................
Section 12.09 Notices to and from Rating Agencies..........................
Section 12.10 Requests for Information; Standing Requests..................
LIST OF EXHIBITS
EXHIBIT A-1 Form of Class A-1 Certificate
EXHIBIT A-2 Form of Class A-2 Certificate
EXHIBIT A-3 Form of Class A-2FL Certificate
EXHIBIT A-4 Form of Class A-3 Certificate
EXHIBIT A-5 Form of Class A-AB Certificate
EXHIBIT A-6 Form of Class A-4 Certificate
EXHIBIT A-7 Form of Class A-1A Certificate
EXHIBIT A-8 Form of Class XW Certificate
EXHIBIT A-9 Form of Class A-M Certificate
EXHIBIT A-10 Form of Class A-J Certificate
EXHIBIT A-11 Form of Class A-JFL Certificate
EXHIBIT A-12 Form of Class B Certificate
EXHIBIT A-13 Form of Class C Certificate
EXHIBIT A-14 Form of Class D Certificate
EXHIBIT A-15 Form of Class E Certificate
EXHIBIT A-16 Form of Class F Certificate
EXHIBIT A-17 Form of Class G Certificate
EXHIBIT A-18 Form of Class H Certificate
EXHIBIT A-19 Form of Class J Certificate
EXHIBIT A-20 Form of Class K Certificate
EXHIBIT A-21 Form of Class L Certificate
EXHIBIT A-22 Form of Class M Certificate
EXHIBIT A-23 Form of Class N Certificate
EXHIBIT A-24 Form of Class O Certificate
EXHIBIT A-25 Form of Class P Certificate
EXHIBIT A-26 Form of Class Q Certificate
EXHIBIT A-27 Form of Class S Certificate
EXHIBIT A-28 Form of Class R-I Certificate
EXHIBIT A-29 Form of Class R-II Certificate
EXHIBIT A-30 Form of Class V Certificate
EXHIBIT B Form of Investment Representation Letter
EXHIBIT C-1 Form of Transfer Affidavit and Agreement Pursuant to Section
5.02(d)(i)(B)
EXHIBIT C-2 Form of Transferor Certificate Pursuant to Section 5.02(d)(i)(D)
EXHIBIT D Form of Request for Release
EXHIBIT E Form of ERISA Representation Letter
EXHIBIT F Form of Custodial Certification
EXHIBIT G Form of Trustee Distribution Date Statement
EXHIBIT H Request for Review
EXHIBIT I Form of Notice Regarding Purchase Option Exercise
EXHIBIT J Form of Notice and Certification Regarding Defeasance of
Mortgage Loan
EXHIBIT K Form of Certification to be Provided with Form 10-K
EXHIBIT L Form of Certification to be Provided to Depositor
EXHIBIT M Form of Confidentiality Agreement
EXHIBIT N Form of Regulation S Certificate
EXHIBIT O Form of Transfer Certificate for Exchange or Transfer
from Domestic Global Certificate to Regulation S Global
Certificate During the Restricted Period
EXHIBIT P Form of Transfer Certificate for Exchange or Transfer from
Domestic Global Certificate to Regulation S Global Certificate
After the Restricted Period
EXHIBIT Q Form of Transfer Certificate for Exchange or Transfer from
Regulation S Global Certificate to Domestic Global Certificate
LIST OF SCHEDULES
SCHEDULE I Mortgage Loan Schedule
SCHEDULE II Sub-Servicing Agreements in Effect as of the Closing Date
SCHEDULE III Schedule of Exceptions under Section 2.02(a)
SCHEDULE IV [RESERVED]
SCHEDULE V Mortgage Loans that Initially Pay Interest Only
SCHEDULE VI Mortgage Loans Containing Additional Debt
SCHEDULE VII Schedule of Initial Controlling Holders and Operating Advisors
SCHEDULE VIII Servicing Criteria to be Addressed in Assessment of Compliance
SCHEDULE IX Additional Form 10-D Disclosure
SCHEDULE X Additional Form 10-K Disclosure
SCHEDULE XI Form 8-K Disclosure Information
SCHEDULE XII Form of Additional Disclosure Notification
SCHEDULE XIII Schedule of Tenant-in-Common Loans
SCHEDULE XIV Schedule of Earnout and Holdback Loans
This Pooling and Servicing Agreement (this "Agreement"), dated
and effective as of June 1, 2007, is by and among BANC OF AMERICA COMMERCIAL
MORTGAGE INC., as Depositor, BANK OF AMERICA, NATIONAL ASSOCIATION, as Master
Servicer, LNR PARTNERS, INC., as Special Servicer, and XXXXX FARGO BANK,
N.A., as Trustee and as REMIC Administrator.
PRELIMINARY STATEMENT:
The Depositor intends to sell Certificates, to be issued hereunder
in multiple Classes, which in the aggregate will evidence the entire beneficial
ownership interest in the Trust to be created hereunder.
As provided herein, the Trustee will elect that two segregated pools
of assets within the Trust Fund (exclusive of the Excess Interest, the Excess
Interest Distribution Account, the Class A-2FL Regular Interest, the Class A-2FL
Swap Contract, the Class A-2FL Floating Rate Account, the Class A-JFL Regular
Interest, the Class A-JFL Swap Contract and the Class A-JFL Floating Rate
Account) be treated for federal income tax purposes as two separate real estate
mortgage investment conduits ("REMIC I" and "REMIC II", respectively).
REMIC I
As provided herein, the Trustee will elect to treat the segregated
pool of assets, consisting of the Mortgage Loans (exclusive of Excess Interest)
and certain other related assets subject to this Agreement, as a REMIC for
federal income tax purposes and such segregated asset pool will be designated as
"REMIC I". The REMIC I Regular Interests listed below under the heading
"Corresponding REMIC I Regular Interests" constitute "regular interests" in
REMIC I and the Class R-I Certificates constitute the sole Class of "residual
interests" in REMIC I created hereunder for purposes of the REMIC Provisions.
The following table sets forth the Class or Component designation,
the corresponding REMIC I Regular Interest (the "Corresponding REMIC I Regular
Interest"), and the Corresponding Components of the Class XW Certificates for
each Class of the REMIC II Certificates (the "Corresponding Certificates").
Corresponding REMIC
Corresponding I Regular REMIC I Corresponding Components of
Certificates Interests(1) Principal Balance Class XW Certificates(1)
----------------------- ------------------------ ------------------------ ---------------------------------
Class X-0 XX-0 $ 58,000,000 XA-1
Class A-2 LA-2 $753,000,000 XA-2
Class A-2FL Regular
Interest LA-2FL(2) $ 55,000,000 XA-2FL
Class A-3 LA-3 $162,600,000 XA-3
Class A-AB LA-AB $ 60,978,000 XA-AB
Class X-0 XX-0 x000,000,000 XX-0
Class A-1A LA-1A $529,302,000 XA-1A
Class A-M LA-M $317,269,000 XA-M
Class A-J LA-J $153,815,000 XA-J
Class A-JFL Regular
Interest LA-JFL(3) $100,000,000 XA-JFL
Class B LB $ 15,863,000 XB
Class C LC $ 47,590,000 XC
Class D LD $ 31,727,000 XD
Class E LE $ 15,864,000 XE
Class F LF $ 27,761,000 XF
Class G LG $ 27,761,000 XG
Class H LH $ 43,624,000 XH
Class J LJ $ 35,693,000 XJ
Class K LK $ 35,693,000 XK
Class L LL $ 15,863,000 XL
Class M LM $ 7,932,000 XM
Class N LN $ 15,863,000 XN
Class O LO $ 3,966,000 XO
Class P LP $ 3,966,000 XP
Class Q LQ $ 11,897,000 XQ
Class S LS $ 39,659,516 XS
(1) The REMIC I Regular Interest and the Component of the Class XW
Certificates that correspond to any particular Class of REMIC II Regular
Certificates or the Class A-2FL or Class A-JFL Regular Interest also
correspond to each other and, accordingly, constitute the (i)
"Corresponding REMIC I Regular Interests" and (ii) "Corresponding
Components", respectively, with respect to each other.
(2) The Class LA-2FL Regular Interest and Component XA-2FL do not correspond
to any Class of REMIC II Certificates. The Class LA-2FL Regular Interest
and Component XA-2FL correspond to the Class A-2FL Regular Interest and to
each other.
(3) The Class LA-JFL Regular Interest and Component XA-JFL do not correspond
to any Class of REMIC II Certificates. The Class LA-2FL Regular Interest
and Component XA-JFL correspond to the Class A-JFL Regular Interest and to
each other.
REMIC II
As provided herein, the Trustee will elect to treat that portion of
the Trust Fund consisting of the REMIC I Regular Interests and certain other
assets subject to this Agreement as a REMIC for federal income tax purposes, and
such segregated asset pool will be designated as "REMIC II". The Class A-1,
Class A-2, Class A-3, Class A-AB, Class A-4, Class A-1A, Class XW, Class A-M,
Class A-J, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class
J, Class K, Class L, Class M, Class N, Class O, Class P, Class Q and Class S
Certificates and the Class A-2FL and Class A-JFL Regular Interests will
constitute "regular interests" in REMIC II, and the Class R-II Certificates will
constitute the sole Class of "residual interests" in REMIC II for purposes of
the REMIC Provisions.
The following table sets forth the designation, the approximate
initial Pass-Through Rate and the Initial Class Principal Balance for each of
the Classes of Regular Certificates and the Class A-2FL and Class A-JFL Regular
Interests:
Approximate Initial Initial Class
Designation Pass-Through Rate Principal Balance
-------------------------------------------------------------------------------------------------
Regular Certificates and the Class A-2FL and Class A-JFL Regular Interests
Class A-1 5.4210% per annum $ 58,000,000
Class A-2 5.6340% per annum(1) $ 753,000,000
Class A-2FL LIBOR plus 0.1500% per annum(6) $ 55,000,000
Class A-2FL Regular Interest 5.6340% per annum(1) $ 55,000,000
Class A-3 5.6614% per annum(2) $ 162,600,000
Class A-AB 5.6384% per annum(2) $ 60,978,000
Class A-4 5.6884% per annum(2) $ 602,000,000
Class A-1A 5.6374% per annum(2) $ 529,302,000
Class XW 0.0469% per annum(4) $3,172,686,516(5)
Class A-M 5.6984% per annum(3) $ 317,269,000
Class A-J 5.6984% per annum(3) $ 153,815,000
Class A-JFL LIBOR plus 0.3500% per annum (6) $ 100,000,000
Class A-JFL Regular Interest 5.6984% per annum(3) $ 100,000,000
Class B 5.6984% per annum(3) $ 15,863,000
Class C 5.6984% per annum(3) $ 47,590,000
Class D 5.6984% per annum(3) $ 31,727,000
Class E 5.6984% per annum(3) $ 15,864,000
Class F 5.6984% per annum(3) $ 27,761,000
Class G 5.6984% per annum(3) $ 27,761,000
Class H 5.6984% per annum(3) $ 43,624,000
Class J 5.6984% per annum(3) $ 35,693,000
Class K 5.6984% per annum(3) $ 35,693,000
Class L 5.3690% per annum(1) $ 15,863,000
Class M 5.3690% per annum(1) $ 7,932,000
Class N 5.3690% per annum(1) $ 15,863,000
Class O 5.3690% per annum(1) $ 3,966,000
Class P 5.3690% per annum(1) $ 3,966,000
Class Q 5.3690% per annum(1) $ 11,897,000
Class S 5.3690% per annum(1) $ 39,659,516
-----------------
(1) Initial Pass-Through Rate. The Pass-Through Rate for the Class A-2, Class
L, Class M, Class N, Class O, Class P, Class Q and Class S Certificates
and the Class A-2FL Regular Interest for each Distribution Date will not
exceed the Weighted Average Adjusted Net Mortgage Rate for such
Distribution Date.
(2) Initial Pass-Through Rate. The Class A-3, Class A-AB, Class A-4 and Class
A-1A Certificates for each Distribution Date shall equal the Weighted
Average Adjusted Net Mortgage Rate for such Distribution Date minus
0.0370%, 0.0600%, 0.0100% and 0.0610%, respectively.
(3) Initial Pass-Through Rate. The Pass-Through Rate for the Class A-M, Class
A-J, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class
J and Class K Certificates and the Class A-JFL Regular Interest for each
Distribution Date will equal the Weighted Average Adjusted Net Mortgage
Rate for such Distribution Date.
(4) The Pass-Through Rate for the Class XW Certificates will be calculated in
accordance with the definition of "Class XW Pass-Through Rate".
(5) The Class XW Certificates will not have Class Principal Balances; rather,
such Class of Certificates will accrue interest as provided herein on the
related Certificate Notional Amount.
(6) Initial Pass-Through Rate. The Pass-Through Rate applicable to the Class
A-2FL and A-JFL Certificates on each Distribution Date will be a per annum
rate equal to LIBOR plus 0.1500% and LIBOR plus 0.3500%, respectively. In
addition, under certain circumstances described in this Agreement, the
Pass-Through Rate applicable to the Class A-2FL and A-JFL Certificates may
convert to the Pass-Through Rate applicable to the Class A-2FL and Class
A-JFL Regular Interests, respectively. The Class A-2FL Regular Interest
will accrue interest at a fixed per annum rate of 5.6340%, subject to a
cap equal to the Weighted Average Adjusted Net Mortgage Rate. The Class
A-JFL Regular Interest will accrue interest at the Weighted Average
Adjusted Net Mortgage Rate. The initial LIBOR rate will be determined as
of June 4, 2007, and subsequent LIBOR rates will be determined two LIBOR
Business Days before the start of the related Interest Accrual Period.
The Class R-I and Class R-II Certificates will bear no Pass-Through
Rate and will have no initial Certificate Principal Balances or notional
amounts. Any Available Distribution Amount (i) remaining in the REMIC I
Distribution Account after the distribution of all amounts distributable in
respect of the REMIC I Regular Interests and (ii) remaining in the REMIC II
Distribution Account after distributions to the Holders of the Regular
Certificates shall be distributed to the Holders of the Class R-I and Class R-II
Certificates, respectively.
The segregated pool of assets consisting of the Excess Interest and
the Excess Interest Distribution Account will be treated as a grantor trust (the
"Excess Interest Grantor Trust") for federal income tax purposes. The Class V
Certificates will represent undivided beneficial interests in the Excess
Interest Grantor Trust.
The segregated pool of assets consisting of the Class A-2FL Regular
Interest, the Class A-2FL Swap Contract and the Class A-2FL Floating Rate
Account and the proceeds thereof, will be treated as a grantor trust (the "Class
A-2FL Grantor Trust") for federal income tax purposes. The Class A-2FL
Certificates will represent undivided beneficial interests in the Class A-2FL
Grantor Trust.
The segregated pool of assets consisting of the Class A-JFL Regular
Interest, the Class A-JFL Swap Contract and the Class A-JFL Floating Rate
Account and the proceeds thereof, will be treated as a grantor trust (the "Class
A-JFL Grantor Trust") for federal income tax purposes. The Class A-JFL
Certificates will represent undivided beneficial interests in the Class A-JFL
Grantor Trust.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator agree as follows:
ARTICLE I
DEFINITIONS; CERTAIN CALCULATIONS IN RESPECT OF THE MORTGAGE POOL AND THE
CERTIFICATES
Section 1.01 Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, the following words and phrases, unless the context otherwise
requires, shall have the meanings specified in this Article.
"10-K Filing Deadline": As defined in Section 11.05(a).
"30/360 Basis": The accrual of interest calculated on the
basis of a 360-day year consisting of twelve 30-day months.
"575 Lexington Avenue Controlling Holder": The holder determined in
accordance with Section 2(h) of the 000 Xxxxxxxxx Xxxxxx Intercreditor
Agreement. The initial 000 Xxxxxxxxx Xxxxxx Controlling Holder shall be set
forth on Schedule VII hereto.
"575 Lexington Avenue Indemnified Parties": As defined in Section
6.03(c).
"575 Lexington Avenue Intercreditor Agreement": The Agreement Among
Note Holders dated as of February 1, 2007 by and between the 000 Xxxxxxxxx
Xxxxxx Note A-1 Holder and the 000 Xxxxxxxxx Xxxxxx Note A-2 Holder relating to
the relative rights of such holders, as the same may be further amended from
time to time in accordance with the terms thereof.
"575 Lexington Avenue Master Servicer": The master servicer under
the 000 Xxxxxxxxx Xxxxxx Pooling Agreement, which as of the Closing Date is Bank
of America, National Association.
"575 Lexington Avenue Nonrecoverable Servicing Advance": With
respect to the 000 Xxxxxxxxx Xxxxxx Pari Passu Mortgage Loan, a "Nonrecoverable
Servicing Advance" as defined in the 000 Xxxxxxxxx Xxxxxx Pooling Agreement.
"575 Lexington Avenue Note A-1": With respect to the 000 Xxxxxxxxx
Xxxxxx Pari Passu Mortgage Loan, the related Mortgage Note that is not included
in the Trust Fund and which is pari passu in right of payment to the 000
Xxxxxxxxx Xxxxxx Note A-2 as set forth in the 000 Xxxxxxxxx Xxxxxx Intercreditor
Agreement.
"575 Lexington Avenue Note A-1 Holder": The holder of the 000
Xxxxxxxxx Xxxxxx Note A-1, initially Banc of America Commercial Mortgage Trust
2007-1.
"575 Lexington Avenue Note A-2": The Mortgage Note related to 000
Xxxxxxxxx Xxxxxx Pari Passu Whole Loan that is included in the Trust, which is
pari passu in right of payment to the 000 Xxxxxxxxx Xxxxxx Note A-1 as set forth
in the 000 Xxxxxxxxx Xxxxxx Intercreditor Agreement.
"575 Lexington Avenue Note A-2 Holder": The holder of the 000
Xxxxxxxxx Xxxxxx Note A-2, initially Bank of America, National Association.
"575 Lexington Avenue Pari Passu Companion Loan": The loan evidenced
by the 000 Xxxxxxxxx Xxxxxx Note A-2.
"575 Lexington Avenue Pari Passu Companion Loan Holder": The holder
of the 000 Xxxxxxxxx Xxxxxx Pari Passu Companion Loan.
"575 Lexington Avenue Pari Passu Mortgage Loan": The Mortgage Loan
identified as Loan No. 3403716 in the Mortgage Loan Schedule, which, together
with the 000 Xxxxxxxxx Xxxxxx Note A-1, is secured by a Mortgage on the related
Mortgaged Properties.
"575 Lexington Avenue Pari Passu Whole Loan": The 000 Xxxxxxxxx
Xxxxxx Pari Passu Mortgage Loan together with the 000 Xxxxxxxxx Xxxxxx Pari
Passu Companion Loan. References herein to 000 Xxxxxxxxx Xxxxxx Pari Passu Whole
Loan shall be construed to refer to the aggregate indebtedness under the 000
Xxxxxxxxx Xxxxxx Note A-1 and the 000 Xxxxxxxxx Xxxxxx Note A-2.
"575 Lexington Avenue Pooling Agreement": That certain pooling and
servicing agreement dated as of February 1, 2007 among Banc of America
Commercial Mortgage Inc., as depositor, the 000 Xxxxxxxxx Xxxxxx Master
Servicer, as master servicer, the 000 Xxxxxxxxx Xxxxxx Special Servicer, as
special servicer, and the 000 Xxxxxxxxx Xxxxxx Trustee, as trustee and REMIC
administrator, which agreement relates to the Banc of America Commercial
Mortgage Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-1.
"575 Lexington Avenue Special Servicer": The special servicer under
the 000 Xxxxxxxxx Xxxxxx Pooling Agreement, which of as of the Closing Date is
LNR Partners, Inc.
"575 Lexington Avenue Trustee": The trustee under the 000 Xxxxxxxxx
Xxxxxx Pooling Agreement, which of as of the Closing Date is LaSalle Bank
National Association.
"A/B Companion Loan": The Parkway Chevrolet-Tomball A/B Companion
Loan.
"A/B Mortgage Loan": The Parkway Chevrolet-Tomball A/B Mortgage
Loan.
"A/B Whole Loan": The Parkway Chevrolet-Tomball A/B Whole Loan.
"A/B Whole Loan Purchase Option Holder": With respect to any A/B
Whole Loan, the holder of the related purchase option, if any, under the related
Intercreditor Agreement.
"Accrued Certificate Interest": With respect to any Class of REMIC
II Regular Certificates and the Class A-2FL and Class A-JFL Regular Interests,
for any Distribution Date, one month's interest at the Pass-Through Rate
applicable to such Class of Certificates or the Class A-2FL and Class A-JFL
Regular Interests for such Distribution Date, accrued on the related Class
Principal Balance of such Class of Certificates or the Class A-2FL or Class
A-JFL Regular Interest outstanding immediately prior to such Distribution Date
and, with respect to the Class XW Certificates for any Distribution Date, the
sum of the Accrued Component Interest for the related Interest Accrual Period
for all of their respective Components for such Distribution Date. For the
avoidance of doubt, the Accrued Certificate Interest in respect of any Class of
REMIC II Regular Certificates or the Class A-2FL or Class A-JFL Regular Interest
for any Distribution Date shall be deemed to have accrued during the applicable
Interest Accrual Period. Except with respect to the Class A-2FL and Class A-JFL
Certificates, Accrued Certificate Interest shall be calculated on the basis of a
360-day year consisting of twelve 30-day months. Accrued Certificate Interest
with respect to the Class A-2FL and Class A-JFL Certificates shall be calculated
on an Actual/360 Basis; provided, however, if a Class A-2FL Distribution
Conversion or Class A-2FL Distribution Conversion has occurred, Accrued
Certificate Interest with respect to the Class A-2FL or Class A-JFL
Certificates, as applicable, shall be the same as for the Class A-2FL or Class
A-JFL Regular Interest, as applicable.
"Accrued Component Interest": With respect to each Component of the
Class XW Certificates for any Distribution Date, one month's interest at the
Class XW Strip Rate applicable to such Component for such Distribution Date,
accrued on the Component Notional Amount of such Component outstanding
immediately prior to such Distribution Date. Accrued Component Interest shall be
calculated as described in the definitions of Class XW Strip Rate with respect
to any applicable Component and any Distribution Date, and shall be deemed to
accrue during the calendar month preceding the month in which such Distribution
Date occurs.
"Actual/360 Basis": The accrual of interest calculated on the basis
of the actual number of days elapsed during any calendar month (or other
applicable recurring accrual period) in a year assumed to consist of 360 days.
"Additional Collateral": Any non-real property collateral pledged
and/or delivered by or on behalf of the related Mortgagor and held by the
related Mortgagee to secure payment on any Loan.
"Additional Disclosure Notification": The form of notification to be
included with any Additional Form 10-D Disclosure, Additional Form 10-K
Disclosure or Additional Form 8-K Disclosure, which is attached hereto as
Schedule XII.
"Additional Exclusions": Exclusions relating to terrorist or similar
acts in addition to those customarily found in insurance policies for Mortgaged
Properties prior to September 11, 2001.
"Additional Form 8-K Disclosure": As defined in Section 11.07.
"Additional Form 10-D Disclosure": As defined in Section 11.04.
"Additional Form 10-K Disclosure": As defined in Section 11.05.
"Additional Master Servicing Compensation": As defined in Section
3.11(b).
"Additional Servicer": Each Affiliate of the Master Servicer that
services any of the Mortgage Loans and each Person who is not an Affiliate of
the Master Servicer, other than the Special Servicer and the Trustee, who
services 10% or more of the Mortgage Loans.
"Additional Special Servicing Compensation": As defined in Section
3.11(d).
"Additional Trust Fund Expense": Any expense incurred or shortfall
experienced with respect to the Trust Fund and not otherwise included in the
calculation of a Realized Loss, that would result in the Holders of the
Sequential Pay Certificates or the Class A-2FL or Class A-JFL Certificates
(through the Class A-2FL and Class A-JFL Regular Interests, respectively)
receiving less than the full amount of principal and/or interest to which they
are entitled on any Distribution Date.
"Adjusted Net Mortgage Rate": With respect to any Loan or related
REO Loan, for any Distribution Date, the annualized rate at which interest would
have to accrue thereon on a 30/360 Basis during the most recently ended calendar
month to produce the actual amount of interest accrued (or, if such Loan or REO
Loan, as the case may be, is prepaid, in whole or in part, or otherwise
liquidated during such calendar month, that otherwise would have accrued) in
respect of such Loan or REO Loan, as the case may be, at the related Net
Mortgage Rate in effect for such Loan or REO Loan during such calendar month.
Such rate shall be calculated by multiplying (i) the Net Mortgage Rate (and, in
the case of an ARD Loan after its Anticipated Repayment Date, without giving
effect to any Excess Interest or the Excess Interest Rate) by (ii) the actual
number of days of accrued interest for the related period for such Loan or REO
Loan, divided by 30; provided, however, with respect to such Loan or REO Loan,
the Adjusted Net Mortgage Rate for the one-month period (a) prior to the Due
Dates in January and February in any year that is not a leap year or in February
in any year that is a leap year (unless, in either case, the related
Distribution Date is the final Distribution Date) shall be the per annum rate
stated in the related Mortgage Note as of the Closing Date less the related
Administrative Fee Rate and (b) prior to the Due Date in March (or February, if
the related Distribution Date is the final Distribution Date) shall be
determined inclusive of one day of interest retained for each of the one-month
periods prior to the Due Dates in January and February in any year that is not a
leap year or February in any year that is a leap year.
"Administrative Fee Rate": With respect to each Mortgage Loan and
REO Loan, as specified in the Mortgage Loan Schedule, being the sum of the
related Master Servicing Fee Rate (and, in the case of a Non-Serviced Mortgage
Loan, the related Non-Serviced Mortgage Loan Primary Servicing Fee Rate) and the
Trustee Fee Rate.
"Advance": Any P&I Advance or Servicing Advance.
"Advance Interest": Interest accrued on any Advance at the
Reimbursement Rate and payable to the Master Servicer (or any Sub-Servicer), the
Special Servicer or the Trustee, as the case may be, all in accordance with
Section 3.11(g) or Section 4.03(d), as applicable.
"Adverse Grantor Trust Event": Either: (i) any impairment of the
status of any Grantor Trust as a "grantor trust" under subpart E, Part I of
subchapter J of the Code; or (ii) the imposition of a tax upon any Grantor Trust
or any of such Grantor Trust's assets or transactions.
"Adverse Rating Event": With respect to any Class of Rated
Certificates or Companion Loan Securities and each Rating Agency that has
assigned a rating thereto, as of any date of determination, the qualification,
downgrade or withdrawal of the rating then assigned to such Class of Rated
Certificates or Companion Loan Securities by such Rating Agency (or the placing
of such Class of Rated Certificates or Companion Loan Securities on "negative
credit watch" status in contemplation of any such action with respect thereto).
"Adverse REMIC Event": With respect to each of REMIC I and REMIC II,
either (i) the endangerment of the status of such REMIC as a REMIC or (ii),
except as permitted by Section 3.17(a), the imposition of a tax upon such REMIC
or any of its assets or transactions (including, without limitation, the tax on
prohibited transactions as defined in Section 860F(a)(2) of the Code and the tax
on certain contributions set forth in Section 860G(d) of the Code).
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have the meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement, together with all
amendments hereof and supplements hereto.
"Anticipated Repayment Date": With respect to any ARD Loan, the date
specified on the related Mortgage Note, as of which Excess Interest shall begin
to accrue on such Loan, which date is prior to the Stated Maturity Date for such
Loan.
"Applicable State Law": For purposes of Article X, the Applicable
State Law shall be (a) the laws of any state in which the Corporate Trust Office
of the Trustee is located, (b) the laws of the states in which any loan
documents are held and/or any REO Properties are located, (c) such other state
and local law whose applicability shall have been brought to the attention of
the REMIC Administrator by either (i) an Opinion of Counsel delivered to it or
(ii) written notice from the appropriate taxing authority as to the
applicability of such state law, and (d) such other state or local law as to
which the REMIC Administrator has actual knowledge of applicability.
"Appraisal": With respect to any Mortgaged Property or REO Property
as to which an appraisal is required to be performed pursuant to the terms of
this Agreement, a narrative appraisal complying with Title XI of FIRREA (or, in
the case of a Loan or REO Loan with a Stated Principal Balance as of the date of
such appraisal of $2,000,000 or less, at the Special Servicer's option, either a
limited appraisal and a summary report or an internal valuation prepared by the
Special Servicer) that indicates the "market value" of the subject property, as
defined in 12 C.F.R. ss.225.62(g), and is conducted by a Qualified Appraiser (or
by the Special Servicer in the case of a limited appraisal and summary report or
internal valuation with respect to a Loan or an REO Loan with a Stated Principal
Balance as of the date of such appraisal or valuation of $2,000,000 or less).
"Appraisal Reduction Amount": With respect to any Required Appraisal
Serviced Loan, an amount (calculated as of the Determination Date by the Special
Servicer immediately following the later of the date on which the most recent
relevant Appraisal acceptable for purposes of Section 3.19(b) was obtained by
the Special Servicer pursuant to this Agreement and the date of the most recent
Appraisal Trigger Event with respect to such Required Appraisal Serviced Loan)
equal to the excess, if any, of:
(1) the sum of (a) the Stated Principal Balance of such
Required Appraisal Serviced Loan as of such Determination Date, (b)
to the extent not previously advanced by or on behalf of the Master
Servicer, or the Trustee, all unpaid interest (net of Default
Interest) accrued on such Required Appraisal Serviced Loan through
the most recent Due Date prior to such Determination Date, (c) all
unpaid Master Servicing Fees, Special Servicing Fees, Trustee Fees
and Additional Trust Fund Expenses accrued with respect to such
Required Appraisal Serviced Loan, (d) all related unreimbursed
Advances made by or on behalf of the Master Servicer, the Special
Servicer or the Trustee with respect to such Required Appraisal
Serviced Loan and reimbursable out of the Trust Fund and all
Advances related to such Required Appraisal Serviced Loan that were
not reimbursed out of collections on such Required Appraisal
Serviced Loan, together with all unpaid Advance Interest accrued on
such Advances, and (e) all currently due but unpaid real estate
taxes and assessments, insurance premiums and, if applicable, ground
rents in respect of the related Mortgaged Property or REO Property,
as applicable, for which neither the Master Servicer nor the Special
Servicer holds any Escrow Payments or Reserve Funds; over
(2) the sum of (x) the excess, if any, of (i) 90% of the
Appraised Value of the related Mortgaged Property or REO Property
(subject to such downward adjustments as the Special Servicer may
deem appropriate in accordance with the Servicing Standard (without
implying any obligation to do so) based upon its review of the
related Appraisal and such other information as the Special Servicer
deems appropriate), as applicable, as determined by the most recent
relevant Appraisal acceptable for purposes of Section 3.19(b), over
(ii) the amount of any obligation(s) secured by any liens on such
Mortgaged Property or REO Property, as applicable, that are prior to
the lien of such Required Appraisal Serviced Loan, and (y) any
Escrow Payments, Reserve Funds and/or Letters of Credit held by the
Master Servicer or the Special Servicer with respect to such
Required Appraisal Serviced Loan, the related Mortgaged Property or
any related REO Property (exclusive of any such items that are to be
applied to real estate taxes, assessments, insurance premiums and/or
ground rents or that were taken into account in determining the
Appraised Value of the related Mortgaged Property or REO Property,
as applicable, referred to in clause (2)(x)(i) of this definition).
Notwithstanding the foregoing, if (i) an Appraisal Trigger Event
occurs with respect to any Serviced Loan, (ii) either (A) no Appraisal has been
obtained or conducted, as applicable in accordance with Section 3.19(b), with
respect to the related Mortgaged Property during the 12 month period prior to
the date of such Appraisal Trigger Event or (B) there shall have occurred since
the date of the most recent Appraisal a material change in the circumstances
surrounding the related Mortgaged Property that would, in the Special Servicer's
judgment, materially affect the value of the property, and (iii) no new
Appraisal is obtained or conducted, as applicable, in accordance with Section
3.19(b) within 60 days after such Appraisal Trigger Event, then (x) until such
new Appraisal is obtained or conducted, as applicable in accordance with Section
3.19(b), the Appraisal Reduction Amount shall equal 25% of the Stated Principal
Balance of such Required Appraisal Serviced Loan, and (y) upon receipt or
performance, as applicable in accordance with Section 3.19(b), of such new
Appraisal by the Special Servicer, the Appraisal Reduction Amount for such
Required Appraisal Serviced Loan will be recalculated in accordance with the
preceding sentence of this definition.
Also notwithstanding the foregoing, if and when any
Cross-Collateralized Mortgage Loan becomes a Required Appraisal Serviced Loan,
an Appraisal Reduction Amount shall be calculated for the entire
Cross-Collateralized Set to which that particular Cross-Collateralized Mortgage
Loan belongs as if such Cross-Collateralized Set was a single mortgage loan
secured by multiple properties, and any resulting Appraisal Reduction Amount for
such Cross-Collateralized Set shall be allocated among the respective
Cross-Collateralized Mortgage Loans forming that set on a pro rata basis in
accordance with the respective Stated Principal Balances of those Serviced
Loans.
In addition, notwithstanding the foregoing and for the avoidance of
doubt, for purposes of calculating Appraisal Reduction Amounts for determining
change of control with respect to any Whole Loan, references to the Stated
Principal Balance will be to the entire Stated Principal Balance thereof (i.e.,
the aggregate Stated Principal Balances of the related Mortgage Loan and, in the
case of a Whole Loan, the related Companion Loan).
Each Serviced Whole Loan will be treated as a single Mortgage Loan
for purposes of calculating an Appraisal Reduction Amount with respect to the
Mortgage Loans that comprise that Serviced Whole Loan. For the avoidance of
doubt, any Appraisal Reduction Amount with respect to (i) an the One Park Avenue
Pari Passu Whole Loan will be allocated pro rata between the One Park Avenue
Pari Passu Note A-1 and the One Park Avenue Pari Passu Note A-2 and (ii) any
Appraisal Reduction Amount with respect to any A/B Whole Loan shall be
calculated based upon the aggregate stated principal balances of the related A/B
Mortgage Loan and the related A/B Companion Loan and shall be deemed allocated
first, to the related A/B Companion Loan to the extent of its outstanding
principal balance and then to the related Mortgage Loan.
The Appraisal Reduction Amount applicable to either the Beacon
Seattle & DC Portfolio Mortgage Loan (which is governed by the Beacon Seattle &
DC Portfolio Pooling Agreement ) or to the 000 Xxxxxxxxx Xxxxxx Pari Passu
Mortgage Loan (which is governed by the 000 Xxxxxxxxx Xxxxxx Pooling Agreement)
shall be calculated by the applicable Other Servicer under the related
Non-Serviced Pooling and Servicing Agreement.
"Appraisal Trigger Event": With respect to any Serviced Loan, any of
the following events:
(i) such Serviced Loan becomes a Modified Serviced Loan;
(ii) any such Serviced Loan becomes a Defaulted Loan;
(iii) the passage of 60 days after the Special Servicer
receives notice that the Mortgagor under such Serviced Loan becomes
the subject of bankruptcy, insolvency or similar proceedings that
remain undischarged and undismissed;
(iv) the passage of 60 days after the Special Servicer
receives notice that a receiver or similar official is appointed
with respect to the related Mortgaged Property;
(v) the related Mortgaged Property becomes an REO Property; or
(vi) if a Serviced Loan has been extended three times, upon
the sixtieth day after the third extension.
"Appraised Value": With respect to any Mortgaged Property (other
than any Mortgaged Property related to a Non-Serviced Loan) and as of any date
of determination, the appraised value of a Mortgaged Property or REO Property
based upon the most recent Appraisal obtained or conducted, as appropriate,
pursuant to this Agreement. With respect to any Mortgaged Property related to a
Non-Serviced Loan, the appraised value shall be determined pursuant to the
related Non-Serviced Loan Pooling and Servicing Agreement.
"Approval Provisions": With respect to any Serviced Loan and the
provisions set forth in Section 3.21(e), the approvals and consents and the time
frames for such approvals and consents necessary in connection with the taking
of a Special Action or the extension of the maturity date of a Serviced Loan set
forth below (in each case subject to the limitations set forth in Section
3.21(e) and Section 3.21(f):
(i) with respect to any Performing Serviced Loan, the Master
Servicer shall obtain the approval or consent of the Special
Servicer in connection with a Special Action;
(ii) (A) with respect to any Non-Partitioned Loan or Post CAP
Whole Loan that is a Performing Serviced Loan that involves an
extension of the maturity date of such Loan or (B) in connection
with a Special Action for any Non-Partitioned Loan or Post CAP Whole
Loan that is a Performing Serviced Loan, the Master Servicer shall
obtain the approval and consent of the Special Servicer and the
Special Servicer shall obtain the approval and consent of the
Directing Certificateholder in connection with a Special Action that
involves an extension of the maturity date of such Loan;
(iii) with respect to any Non-Partitioned Loan or Post CAP
Whole Loan that is a Specially Serviced Loan, the Special Servicer
shall obtain the approval and consent of the Directing
Certificateholder in connection with a Special Action;
(iv) with respect to any A/B Whole Loan, during any time
period that a related Control Appraisal Period does not exist, the
Master Servicer, if such A/B Whole Loan is a then Performing Loan,
shall seek the approval and consent of the Special Servicer, and the
Special Servicer shall then obtain the approval and consent of the
related Controlling Holder in connection with a Special Action; and
(v) with respect to any A/B Whole Loan, during any time period
that a related Control Appraisal Period does not exist, the Special
Servicer, if such A/B Whole Loan is a then Specially Serviced Loan,
shall obtain the approval and consent of the related Controlling
Holder in connection with a Special Action.
With respect to any extension or Special Action set forth in clauses
(i), (ii) and (iv) of this definition, the Special Servicer shall respond to the
Master Servicer in writing (which may be via e-mail or facsimile) of its
decision to grant or deny the Master Servicer's request for approval and consent
within ten Business Days of its receipt of such request (except as provided in
Section 3.08) and all information reasonably requested by the Special Servicer,
as such time frame may be extended if the Special Servicer is required to seek
the consent of the Directing Certificateholder, the related Controlling Holder
or any Rating Agency. If the Special Servicer so fails to respond to the Master
Servicer within the time period referenced in the immediately preceding
sentence, such approval and consent shall be deemed granted. With respect to any
Special Action described in clauses (ii) and (iii) of this definition, the
Directing Certificateholder shall respond to the Special Servicer within ten
Business Days of its receipt of such request in writing (which may be via e-mail
or facsimile) and such request shall be deemed granted if the Directing
Certificateholder does not respond in such time frame. With respect to any
Special Action described in clauses (iv) and (v) of this definition, the related
Controlling Holder shall respond in writing (which may be via e-mail or
facsimile) to the Special Servicer within ten Business Days of its receipt of a
request for its approval and consent, and such request shall be deemed granted
if the required party does not respond in such time frame.
"ARD Loan": Any Mortgage Loan that provides for changes in payments
and accrual of interest, including the capture of Excess Interest from the
related mortgaged property and an increase in the applicable Mortgage Rate, if
it is not paid in full by the Anticipated Repayment Date. Each Mortgage Loan
that is an ARD Loan is identified on the Mortgage Schedule as such pursuant to
clause (xv) under the definition of Mortgage Loan Schedule.
"Asset Status Report": As defined in Section 3.21(d).
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar document or instrument
executed by the Mortgagor in connection with the related Loan, as amended,
modified, renewed or extended through the date hereof and from time to time
hereafter.
"Assumed Monthly Payment": With respect to any Balloon Loan for its
Stated Maturity Date (provided that such Loan has not been paid in full, and no
other Liquidation Event has occurred in respect thereof, on or before the end of
the Collection Period in which such Stated Maturity Date occurs) and for any
subsequent Due Date on which such Serviced Loan remains outstanding and part of
the Trust Fund, if no Monthly Payment (other than a delinquent Balloon Payment)
is due for such Due Date, the scheduled monthly payment of principal and/or
interest deemed to be due in respect thereof on such Due Date equal to the
amount that would have been due in respect of such Serviced Loan on such Due
Date if it had been required to continue to accrue interest (exclusive, in the
case of an ARD Loan after its Anticipated Repayment Date, of Excess Interest) in
accordance with its terms, and to pay principal in accordance with the
amortization schedule (if any), in effect immediately prior to, and without
regard to the occurrence of, its most recent scheduled maturity date (as such
terms and amortization schedule may have been modified, and such maturity date
may have been extended, in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or a modification, waiver or amendment of such
Serviced Loan granted or agreed to by the Master Servicer or Special Servicer
pursuant to Section 3.20). With respect to any REO Loan, for any Due Date
therefor as of which the related REO Property remains part of the Trust Fund,
the scheduled monthly payment of principal and/or interest deemed to be due in
respect thereof on such Due Date equal to the Monthly Payment that was due (or,
in the case of a Balloon Loan described in the preceding sentence of this
definition, the Assumed Monthly Payment that was deemed due) in respect of the
related Serviced Loan on the last Due Date prior to its becoming an REO Loan.
"Available Distribution Amount": With respect to any Distribution
Date and each Mortgage Loan and, in the case of a Non-Serviced Whole Loan (other
than with respect to a P&I Advance required to be made by the Trustee), only to
the extent received by the Trustee pursuant to the related Intercreditor
Agreement, an amount equal to (a) the balance on deposit in the Certificate
Account and the Distribution Account as of the close of business on the related
Determination Date, including, without limitation, if and to the extent on
deposit therein as of such time, the Master Servicer Remittance Amount for the
related Master Servicer Remittance Date, any P&I Advances made by the Master
Servicer or the Trustee to cover uncollected Monthly Payments due and/or Assumed
Monthly Payments deemed due during the related Collection Period, any amounts
received from the Beacon Seattle & DC Portfolio Master Servicer in respect of
the Beacon Seattle & DC Portfolio Mortgage Loan pursuant to the Beacon Seattle &
DC Portfolio Pooling Agreement and/or the Beacon Seattle & DC Portfolio
Intercreditor Agreements, any amounts received from the 000 Xxxxxxxxx Xxxxxx
Master Servicer in respect of the 000 Xxxxxxxxx Xxxxxx Pari Passu Mortgage Loan
pursuant to the 000 Xxxxxxxxx Xxxxxx Xxxxxxx Agreement and/or the 000 Xxxxxxxxx
Xxxxxx Intercreditor Agreement, any Compensating Interest Payments made by the
Master Servicer to cover Prepayment Interest Shortfalls incurred during the
related Collection Period, the portion of Loss of Value Payments deposited into
the Certificate Account pursuant to Section 3.05(g) and for the Distribution
Date occurring in each March (or February, if the related Distribution Date is
the final Distribution Date), the related Withheld Amounts remitted to the REMIC
I Distribution Account pursuant to Section 4.05, net of (b) any portion of the
amounts described in clause (a) of this definition that represents one or more
of the following (i) collected Monthly Payments that are due on a Due Date
following the end of the related Collection Period, (ii) any payments of
principal (including, without limitation, Principal Prepayments) and interest,
Liquidation Proceeds and Insurance Proceeds received after the end of the
related Collection Period, (iii) Prepayment Premiums, (iv) Excess Interest, (v)
any amounts payable or reimbursable to any Person from the REMIC I Distribution
Account pursuant to any of clauses (ii) through (vi) of Section 3.05(b), (vi)
any amounts deposited into the REMIC I Distribution Account in error, (vii) all
funds released from the Excess Liquidation Proceeds Account with respect to such
Distribution Date, (viii) any amounts payable or reimbursable to any Person from
the Certificate Account pursuant to clauses (ii) through (xvii) of Section
3.05(a), and (ix) with respect to each Mortgage Loan that accrues interest on an
Actual/360 Basis and any Distribution Date relating to the one-month period
preceding the Distribution Date in each February (and in any January of a year
that is not a leap year) (unless, in either case, the related Distribution Date
is the final Distribution Date), an amount equal to the related Withheld Amount
pursuant to Section 4.05; provided that the Available Distribution Amount for
the Final Distribution Date shall be calculated without regard to clauses
(b)(i), (b)(ii) and (b)(iii) of this definition.
"BACM": Banc of America Commercial Mortgage Inc., or its successors
in interest.
"Balloon Loan": Any Loan that by its original terms or by virtue of
any modification entered into as of the Closing Date (or, in the case of a
Replacement Mortgage Loan, as of the related date of substitution) provides for
an amortization schedule extending beyond its Stated Maturity Date and as to
which, in accordance with such terms, the Monthly Payment due on its Stated
Maturity Date is at least two times larger than the Monthly Payment due on the
Due Date next preceding its Stated Maturity Date.
"Balloon Payment": With respect to any Balloon Loan as of any date
of determination, the Monthly Payment payable on the Stated Maturity Date of
such Loan.
"Balloon Payment Interest Shortfall": With respect to any Balloon
Loan that is included as part of the Trust Fund, with a Stated Maturity Date
that occurs after, or that provides for a grace period for its Balloon Payment
that runs past, the Determination Date in any calendar month, and as to which
the Balloon Payment is actually received after the Determination Date in such
calendar month (but no later than its Stated Maturity Date or, if there is an
applicable grace period, beyond the end of such grace period), the amount of
interest, to the extent not collected from the related Determination Date, that
would have accrued on the principal portion of such Balloon Payment during the
period from the related Stated Maturity Date to, but not including, the first
day of the calendar month following the month of maturity (less the amount of
related Master Servicing Fees that would have been payable from that uncollected
interest and, if applicable, exclusive of any portion of that uncollected
interest that would have been Default Interest).
"Bank": As defined in Section 2.07.
"Bank of America": Bank of America, National Association, or its
successors in interest.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time
to time (Title 11 of the United States Code).
"Base Interest Fraction": With respect to any Principal Prepayment
on any Mortgage Loan, and with respect to any Class of Sequential Pay
Certificates or the Class A-2FL or Class A-JFL Regular Interest, is a fraction
(a) whose numerator is the amount, if any, by which (i) the Pass-Through Rate on
such Class of Certificates or the Class A-2FL or Class A-JFL Regular Interest
exceeds (ii) the Discount Rate and (b) whose denominator is the amount, if any,
by which (i) the Mortgage Rate on such Mortgage Loan exceeds (ii) the Discount
Rate. However, under no circumstances shall the Base Interest Fraction be
greater than one. If such Discount Rate is greater than or equal to the lesser
of (x) the Mortgage Rate on such Mortgage Loan and (y) the Pass-Through Rate
described in the preceding sentence, then the Base Interest Fraction will equal
zero.
"Base Prospectus": That certain prospectus, dated May 24, 2007,
relating to trust funds established by the Depositor and publicly offered
mortgage pass-through certificates evidencing interests therein.
"Beacon Seattle & DC Portfolio A/B Intercreditor Agreement": The
Agreement Among Note Holders dated as of June 1, 2007 by and among the Beacon
Seattle & DC Portfolio Note A-4 Holder, Beacon Seattle & DC Portfolio Note A-5
Holder and Beacon Seattle & DC Portfolio Note B-1 Holder relating to the
relative rights of such holders, as the same may be further amended from time to
time in accordance with the terms thereof.
"Beacon Seattle & DC Portfolio Companion Loan": Individually or
collectively, as the context requires, each of the loans evidenced by the Beacon
Seattle & DC Portfolio Note A-1, Beacon Seattle & DC Portfolio Note A-2, Beacon
Seattle & DC Portfolio Note A-3, Beacon Seattle & DC Portfolio Note A-5, Beacon
Seattle & DC Portfolio Note A-6, Beacon Seattle & DC Portfolio Note A-7 and the
Beacon Seattle & DC Portfolio Note B-1.
"Beacon Seattle & DC Portfolio Companion Loan Holder": Individually
or collectively, as the context requires, each of the holders of each respective
Beacon Seattle & DC Portfolio Companion Loan.
"Beacon Seattle & DC Portfolio Indemnified Parties": As defined in
Section 6.03(b).
"Beacon Seattle & DC Portfolio Intercreditor Agreements": Together,
the Beacon Seattle & DC Portfolio A/B Intercreditor Agreement and the Beacon
Seattle & DC Portfolio Pari Passu Intercreditor Agreement.
"Beacon Seattle & DC Portfolio Master Servicer": The master servicer
under the Beacon Seattle & DC Portfolio Pooling Agreement, which as of the
Closing Date is Xxxxx Fargo Bank, N.A.
"Beacon Seattle & DC Portfolio Mortgage Loan": The Mortgage Loan
identified as Loan No. 51006 in the Mortgage Loan Schedule, which, together with
Beacon Seattle & DC Portfolio Note A-1, Beacon Seattle & DC Portfolio Note A-2
Holder, Beacon Seattle & DC Portfolio Note A-3, Beacon Seattle & DC Portfolio
Note A-5, Beacon Seattle & DC Portfolio Note A-6, Beacon Seattle & DC Portfolio
Note A-7 and the Beacon Seattle & DC Portfolio Note B-1, is secured by a
Mortgage on the related Mortgaged Properties.
"Beacon Seattle & DC Portfolio Nonrecoverable Servicing Advance":
With respect to the Beacon Seattle & DC Portfolio Pari Passu Mortgage Loan, a
"Nonrecoverable Advance" as defined in the Beacon Seattle & DC Portfolio Pooling
Agreement.
"Beacon Seattle & DC Portfolio Note A-1": With respect to the Beacon
Seattle & DC Portfolio Whole Loan, one of the related Mortgage Notes that is not
included in the Trust Fund and which is pari passu in right of payment to the
Beacon Seattle & DC Portfolio Note A-4 as set forth in the Beacon Seattle & DC
Portfolio Pari Passu Intercreditor Agreement.
"Beacon Seattle & DC Portfolio Note A-1 Holder": The holder of the
Beacon Seattle & DC Portfolio Note A-1, initially Xxxxxx Xxxxxxx Mortgage
Capital Inc.
"Beacon Seattle & DC Portfolio Note A-2": With respect to the Beacon
Seattle & DC Portfolio Whole Loan, one of the related Mortgage Notes that is not
included in the Trust Fund and which is pari passu in right of payment to the
Beacon Seattle & DC Portfolio Note A-4 as set forth in the Beacon Seattle & DC
Portfolio Pari Passu Intercreditor Agreement.
"Beacon Seattle & DC Portfolio Note A-2 Holder": The holder of the
Beacon Seattle & DC Portfolio Note A-2, initially Xxxxxx Xxxxxxx Mortgage
Capital Inc.
"Beacon Seattle & DC Portfolio Note A-3": With respect to the Beacon
Seattle & DC Portfolio Whole Loan, one of the related Mortgage Notes that is not
included in the Trust Fund and which is pari passu in right of payment to the
Beacon Seattle & DC Portfolio Note A-4 as set forth in the Beacon Seattle & DC
Portfolio Pari Passu Intercreditor Agreement.
"Beacon Seattle & DC Portfolio Note A-3 Holder": The holder of the
Beacon Seattle & DC Portfolio Note A-3, initially Xxxxxx Xxxxxxx Mortgage
Capital Inc.
"Beacon Seattle & DC Portfolio Note A-4": The Mortgage Note related
to Beacon Seattle & DC Portfolio Whole Loan that is included in the Trust, which
is (i) pari passu in right of payment to the Beacon Seattle & DC Portfolio Note
A-1, Beacon Seattle & DC Portfolio Note A-2, Beacon Seattle & DC Portfolio Note
A-3, Beacon Seattle & DC Portfolio Note A-5, Beacon Seattle & DC Portfolio Note
A-6 and the Beacon Seattle & DC Portfolio Note A-7 as set forth in the Beacon
Seattle & DC Portfolio Pari Passu Intercreditor Agreement and (ii) senior (along
with the Beacon Seattle & DC Portfolio Note A-5) to the Beacon Seattle & DC
Portfolio Note B-1 as set forth in the Beacon Seattle & DC Portfolio A/B
Intercreditor Agreement.
"Beacon Seattle & DC Portfolio Note A-4 Holder": The holder of the
Beacon Seattle & DC Portfolio Note A-4, initially Bear Xxxxxxx Commercial
Mortgage, Inc.
"Beacon Seattle & DC Portfolio Note A-5": With respect to the Beacon
Seattle & DC Portfolio Whole Loan, one of the related Mortgage Notes that is not
included in the Trust Fund and which is (i) pari passu in right of payment to
the Beacon Seattle & DC Portfolio Note A-4 as set forth in the Beacon Seattle &
DC Portfolio Pari Passu Intercreditor Agreement and (ii) senior (along with the
Beacon Seattle & DC Portfolio Note A-4) to the Beacon Seattle & DC Portfolio
Note B-1 as set forth in the Beacon Seattle & DC Portfolio A/B Intercreditor
Agreement.
"Beacon Seattle & DC Portfolio Note A-5 Holder": The holder of the
Beacon Seattle & DC Portfolio Note A-5, initially Bear Xxxxxxx Commercial
Mortgage, Inc.
"Beacon Seattle & DC Portfolio Note A-6": With respect to the Beacon
Seattle & DC Portfolio Whole Loan, one of the related Mortgage Notes that is not
included in the Trust Fund and which is pari passu in right of payment to the
Beacon Seattle & DC Portfolio Note A-4 as set forth in the Beacon Seattle & DC
Portfolio Pari Passu Intercreditor Agreement.
"Beacon Seattle & DC Portfolio Note A-6 Holder": The holder of the
Beacon Seattle & DC Portfolio Note A-6, initially Wachovia Bank, N.A.
"Beacon Seattle & DC Portfolio Note A-7": With respect to the Beacon
Seattle & DC Portfolio Whole Loan, one of the related Mortgage Notes that is not
included in the Trust Fund and which is pari passu in right of payment to the
Beacon Seattle & DC Portfolio Note A-4 as set forth in the Beacon Seattle & DC
Portfolio Pari Passu Intercreditor Agreement.
"Beacon Seattle & DC Portfolio Note A-7 Holder": The holder of the
Beacon Seattle & DC Portfolio Note A-7, initially Wachovia Bank, N.A.
"Beacon Seattle & DC Portfolio Note B-1": With respect to the Beacon
Seattle & DC Portfolio Whole Loan, one of the related Mortgage Notes that is not
included in the Trust Fund and which is subordinated in right of payment to the
Beacon Seattle & DC Portfolio Note A-4 and the Beacon Seattle & DC Portfolio
Note A-5 as set forth in the Beacon Seattle & DC Portfolio A/B Intercreditor
Agreement.
"Beacon Seattle & DC Portfolio Note B-1 Holder": The holder of the
Beacon Seattle & DC Portfolio Note B-1, initially Bear Xxxxxxx Commercial
Mortgage, Inc.
"Beacon Seattle & DC Portfolio Noteholders": The holder of the
Mortgage Note for each of the Beacon Seattle & DC Portfolio Note A-1, Beacon
Seattle & DC Portfolio Note A-2 Holder, Beacon Seattle & DC Portfolio Note A-3,
Beacon Seattle & DC Portfolio Note A-4, Beacon Seattle & DC Portfolio Note A-5,
Beacon Seattle & DC Portfolio Note A-6, Beacon Seattle & DC Portfolio Note A-7
and the Beacon Seattle & DC Portfolio Note B-1.
"Beacon Seattle & DC Portfolio Operating Advisor": The meaning
assigned to "Operating Advisor" in the Beacon Seattle & DC Portfolio Pari Passu
Intercreditor Agreement. The initial Beacon Seattle & DC Portfolio Operating
Advisor shall be Centerline REIT Inc.
"Beacon Seattle & DC Portfolio Pari Passu Intercreditor Agreement":
The Agreement Among Note Holders dated as of May 23, 2007 by and among the
Beacon Seattle & DC Portfolio Note A-1 Holder, Beacon Seattle & DC Portfolio
Note A-2 Holder, Beacon Seattle & DC Portfolio Note A-3 Holder, Beacon Seattle &
DC Portfolio Note A-4 Holder, Beacon Seattle & DC Portfolio Note A-5 Holder,
Beacon Seattle & DC Portfolio Note A-6 Holder and Beacon Seattle & DC Portfolio
Note A-7 Holder relating to the relative rights of such holders, as the same may
be further amended from time to time in accordance with the terms thereof.
"Beacon Seattle & DC Portfolio Pooling Agreement": That certain
pooling and servicing agreement dated as of May 1, 2007 among Xxxxxx Xxxxxxx
Capital I Inc., as depositor, Beacon Seattle & DC Portfolio Master Servicer, as
master servicer, Beacon Seattle & DC Portfolio Special Servicer, as special
servicer, and the Beacon Seattle & DC Portfolio Trustee, as trustee and REMIC
administrator, which agreement relates to the Xxxxxx Xxxxxxx Capital I Trust,
Commercial Mortgage Pass-Through Certificates, Series 2007-IQ14.
"Beacon Seattle & DC Portfolio Significant Obligor': The Beacon
Seattle & DC Portfolio Mortgage Loan so long as it meets the definition of
"significant obligor" under Regulation AB.
"Beacon Seattle & DC Portfolio Special Servicer": The special
servicer under the Beacon Seattle & DC Portfolio Pooling Agreement, which of as
of the Closing Date is Centerline Servicing Inc.
"Beacon Seattle & DC Portfolio Trustee": The trustee under the
Beacon Seattle & DC Portfolio Pooling Agreement, which of as of the Closing Date
is The Bank of New York Trust Company, National Association.
"Beacon Seattle & DC Portfolio Whole Loan": The Beacon Seattle & DC
Portfolio Mortgage Loan together with each Beacon Seattle & DC Portfolio
Companion Loan. References herein to Beacon Seattle & DC Portfolio Pari Passu
Whole Loan shall be construed to refer to the aggregate indebtedness under the
Beacon Seattle & DC Portfolio Note A-1 and the Beacon Seattle & DC Portfolio
Note A-2.
"Book-Entry Certificate": Any Certificate registered in the name of
the Depository or its nominee.
"Borrower": Individually and collectively, as the context may
require, the obligor or obligors under a Loan, including any Person that has not
signed the related Mortgage Note but owns an interest in the related Mortgaged
Property, which interest has been encumbered to secure such Loan.
"BSCMI": Bear Xxxxxxx Commercial Mortgage, Inc., or its successors
in interest.
"Breach": With respect to any Mortgage Loan, any breach of
representation or warranty made by the related Mortgage Loan Seller pursuant to
Section 4(b) of the related Mortgage Loan Purchase and Sale Agreement.
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in Florida, Maryland, Ohio, Pennsylvania, New York,
any city in which the office of the Certificate Registrar is located or any city
in which the Corporate Trust Office of the Trustee or principal place of
business of the Master Servicer or Special Servicer is located are authorized or
obligated by law or executive order to remain closed; provided that for purposes
of administering the Puerto Rico Mortgage Loans only, a day on which banking
institutions in Puerto Rico are authorized or obligated by law or executive
order to remain closed shall not be a Business Day.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Certificate": Any one of the Depositor's Commercial Mortgage
Pass-Through Certificates, Series 2007-2 as executed by the Trustee and
authenticated and delivered hereunder by the Certificate Registrar.
"Certificate Account": The segregated account or accounts created
and maintained by the Master Servicer pursuant to Section 3.04(a) on behalf of
the Trustee in trust for Certificateholders, which shall be entitled "Bank of
America, National Association, as Master Servicer, in trust for the registered
holders of Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-2, Certificate Account".
"Certificate Factor": With respect to any Class of Regular
Certificates, as of any date of determination, a fraction, expressed as a
decimal carried to at least eight places, the numerator of which is the then
related Class Principal Balance or Class Notional Amount, as the case may be,
and the denominator of which is the related Initial Class Principal Balance or
Initial Class Notional Amount, as the case may be.
"Certificate Notional Amount": With respect to a Class XW
Certificate, as of any date of determination, the then notional amount of such
Certificate equal to the product of (a) the Percentage Interest evidenced by
such Certificate, multiplied by (b) the then Class Notional Amount of the Class
XW Certificates.
"Certificate Owner": With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected on the books
of the Depository or on the books of a Depository Participant or on the books of
an indirect participating brokerage firm for which a Depository Participant acts
as agent.
"Certificate Principal Balance": With respect to any Sequential Pay
Certificate and the Class A-2FL and Class A-JFL Certificates, as of any date of
determination, the then outstanding principal amount of such Certificate equal
to the product of (a) the Percentage Interest evidenced by such Certificate,
multiplied by (b) the then Class Principal Balance of the Class of Certificates
to which such Certificate belongs.
"Certificate Register" and "Certificate Registrar": The register
maintained and the registrar appointed pursuant to Section 5.02.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register; provided that solely for
the purposes of giving any consent, approval or waiver pursuant to this
Agreement, any Certificate registered in the name of the Depositor, either
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the REMIC
Administrator or the Trustee or any Affiliate of any of them shall be deemed not
to be outstanding, and the Voting Rights to which any of them is entitled shall
not be taken into account in determining whether the requisite percentage of
Voting Rights necessary to effect any such consent, approval or waiver has been
obtained, except as otherwise provided in Sections 7.04 and 12.01(b) or except
in connection with the Controlling Class exercising its rights under Section
3.23, or unless such Persons collectively own an entire Class of Certificates
and only the Holders of such Class of Certificates are entitled to grant such
consent, approval or waiver. The Certificate Registrar shall be entitled to
request and rely upon a certificate of the Depositor, the Master Servicer, the
Special Servicer or, if other than the Trustee, the REMIC Administrator, as the
case may be, in determining whether or not a Certificate is registered in the
name of an Affiliate of such Person. All references herein to "Holders" or
"Certificateholders" shall reflect the rights of Certificate Owners as they may
indirectly exercise such rights through the Depository and the Depository
Participants, except as otherwise specified herein; provided, however, the
parties hereto shall be required to recognize as a "Holder" or
"Certificateholder" only the Person in whose name a Certificate is registered in
the Certificate Register.
"Certification Parties": As defined in Section 11.06.
"Certifying Person": As defined in Section 11.06.
"Certifying Servicer" means the Master Servicer, the Special
Servicer, the Trustee or an Additional Servicer, as the case may be.
"Class": Collectively, all of the Certificates bearing the same
alphabetical and, if applicable, numerical Class designation, and each REMIC I
Regular Interest and Corresponding Component.
"Class A Certificates": Any one of the Class A Senior Certificates
and the Class A Junior Certificates.
"Class A Junior Certificates": The Class A-M, Class A-J and Class
A-JFL Certificates (through the Class A-JFL Regular Interest).
"Class A Senior Certificate": Any one of the Class A-1, Class A-2,
Class A-2FL (through the Class A-2FL Regular Interest), Class A-3, Class A-AB,
Class A-4 and Class A-1A Certificates.
"Class A-1 Certificate": Any one of the Certificates with a "Class
A-1" designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-1 Pass-Through Rate": A fixed per annum rate equal to
5.4210%.
"Class A-1A Certificate": Any one of the Certificates with a "Class
A-1A" designation on the face thereof, substantially in the form of Exhibit A-7
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-1A Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date
less 0.0610%.
"Class A-2 Certificate": Any one of the Certificates with a "Class
A-2" designation on the face thereof, substantially in the form of Exhibit A-2
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-2 Pass-Through Rate": A per annum rate equal to 5.6340%;
provided, however, the Class A-2 Pass-Through Rate shall not exceed the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class A-2FL Certificate": Any one of the Certificates with a "Class
A-2FL" designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing a beneficial interest in the Class A-2FL Grantor
Trust for purposes of the Grantor Trust Provisions.
"Class A-2FL Distribution Conversion": With respect to any
Distribution Date (i) upon the occurrence and during the continuation of a Class
A-2FL Swap Default of the nature described in clause (i) of the definition of
Class A-2FL Swap Default while the Trustee on behalf of the Class A-2FL Swap
Trust is pursuing remedies under the Class A-2FL Swap Contract pursuant to
Section 3.33 or (ii) immediately upon and following the termination of the Class
A-2FL Swap Contract until a replacement Class A-2FL Swap Contract is entered
into, if any, the conversion of distributions on the Class A-2FL Certificates
from distributions based, in part, on floating interest payments from the Class
A-2FL Swap Counterparty under the Class A-2FL Swap Contract to distributions
based solely on fixed interest distributions in respect of the Class A-2FL
Regular Interest, as specified in Section 4.01(l).
"Class A-2FL Fixed Swap Payment": With respect to any Distribution
Date, the fixed amount required to be paid to the Class A-2FL Swap Counterparty
by the Class A-2FL Swap Trust under the Class A-2FL Swap Contract.
"Class A-2FL Floating Rate Account": The trust account or accounts
created and maintained as a separate account or accounts (or as a subaccount of
the Distribution Account) by the Trustee in the Class A-2FL Swap Trust pursuant
to Section 3.04(c), which shall be entitled "Xxxxx Fargo Bank, N.A., as Trustee,
in trust for the registered holders of Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-2, Class A-2FL
Certificates, Class A-2FL Floating Rate Account", and which must be an Eligible
Account (or a subaccount of an Eligible Account). The Class A-2FL Floating Rate
Account shall not be an asset of either REMIC I or REMIC II.
"Class A-2FL Floating Swap Payment": With respect to any
Distribution Date, the floating amount required to be paid to the Class A-2FL
Swap Trust by the Class A-2FL Swap Counterparty under the Class A-2FL Swap
Contract.
"Class A-2FL Grantor Trust": That certain "grantor trust" (within
the meaning of the Grantor Trust Provisions), the assets of which are the Class
A-2FL Grantor Trust Assets.
"Class A-2FL Grantor Trust Assets": The segregated pool of assets
consisting of the A-2FL Regular Interest, the Class A-2FL Swap Contract and the
Class A-2FL Floating Rate Account and the proceeds thereof, the beneficial
ownership of which is represented by the Class A-2FL Certificates.
"Class A-2FL Interest Distribution Amount": With respect to any
Distribution Date, an amount equal to (A) the sum of: (i) the Distributable
Certificate Interest received in respect of the Class A-2FL Regular Interest for
such Distribution Date, (ii) the Class A-2FL Net Swap Payment, if any payable by
the Class A-2FL Swap Counterparty, and (iii) any termination payment paid by the
Class A-2FL Swap Counterparty to the Trustee upon the termination of the Class
A-2FL Swap Contract provided no replacement Class A-2FL Swap Contract has been
entered into prior to such Distribution Date, less (B) the Class A-2FL Net Swap
Payment, if any payable by the Class A-2FL Swap Trust, for such Distribution
Date.
"Class A-2FL Net Swap Payment": With respect to the related Interest
Accrual Period, net payment required to be made by (A) the Class A-2FL Swap
Trust to the Class A-2FL Swap Counterparty to the extent of any excess of (i)
the Class A-2FL Fixed Swap Payment over (ii) the Class A-2FL Floating Swap
Payment for such period or (B) the Class A-2FL Swap Counterparty to the Class
A-2FL Swap Trust to the extent of any excess of (x) the Class A-2FL Floating
Swap Payment for such period over (y) the Class A-2FL Fixed Swap Payment for
such period.
"Class A-2FL Pass-Through Rate": For any Distribution Date on which
a Class A-2FL Distribution Conversion has not occurred and is not continuing, a
per annum rate equal to LIBOR plus 0.1500% and, for any Distribution Date on
which a Class A-2FL Distribution Conversion has occurred and is continuing,
5.6340% per annum.
"Class A-2FL Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the amount of principal allocated pursuant
to Section 4.01 in respect of the Class A-2FL Regular Interest on such
Distribution Date.
"Class A-2FL Regular Interest": The uncertificated interest in REMIC
II, designated as "Class A-2FL", constituting a "regular interest" in REMIC II
for purposes of the REMIC Provisions and having the characteristics attributable
thereto in this Agreement.
"Class A-2FL Regular Interest Pass-Through Rate": A fixed per annum
rate of 5.6340% subject to a cap equal to the Weighted Average Adjusted Net
Mortgage Rate.
"Class A-2FL Swap Contract": The 1992 ISDA Master Agreement
(Multi-Currency Cross Border) together with the related schedule, confirmation
and any annexes thereto, dated as of June 6, 2007, by and among the A-2FL Swap
Counterparty and the Trustee, solely in its capacity as Trustee, on behalf of
the Class A-2FL Swap Trust, or any replacement interest rate swap contract
entered into by the Trustee in accordance with this Agreement.
"Class A-2FL Swap Counterparty": Bear Xxxxxxx Capital Markets Inc.,
a Delaware corporation, acting in such capacity or its successor in interest or
any swap counterparty under a replacement Class A-2FL Swap Contract.
"Class A-2FL Swap Default": Any failure on the part of the Class
A-2FL Swap Counterparty to (i) make a required payment under the Class A-2FL
Swap Contract, as and when due thereunder or (ii) any early termination date as
designated under the Class A-2FL Swap Contract shall have occurred.
"Class A-2FL Swap Termination Fees": Any fees or expenses payable by
the Class A-2FL Swap Counterparty to the Class A-2FL Swap Trust in connection
with a Class A-2FL Swap Default, termination of the Class A-2FL Swap Contract or
liquidation of the Class A-2FL Swap Contract, as specified in the Class A-2FL
Swap Contract.
"Class A-2FL Swap Trust": The corpus of a trust and designated as
the "Class A-2FL Swap Trust", consisting of the Class A-2FL Grantor Trust
established on or prior to the Closing Date and maintained in the name of the
Swap Trustee for the benefit of each of the holders of the Class A-2FL
Certificates. For the avoidance of doubt, the Class A-2FL Swap Trust does not
constitute a part of the Trust Fund.
"Class A-3 Certificate": Any one of the Certificates with a "Class
A-3" designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-3 Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date
less 0.0370%.
"Class A-AB Certificate": Any one of the Certificates with a "Class
A-AB" designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-AB Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date
less 0.0600%.
"Class A-4 Certificate": Any one of the Certificates with a "Class
A-4" designation on the face thereof, substantially in the form of Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-4 Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date
less 0.0100%.
"Class A-JFL Certificate": Any one of the Certificates with a "Class
A-JFL" designation on the face thereof, substantially in the form of Exhibit
A-11 attached hereto, and evidencing a beneficial interest in the Class A-JFL
Grantor Trust for purposes of the Grantor Trust Provisions.
"Class A-J Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class A-JFL Certificate": Any one of the Certificates with a "Class
A-JFL" designation on the face thereof, substantially in the form of Exhibit
A-11 attached hereto, and evidencing a "regular interest" in REMIC II for
purposes of the REMIC Provisions.
"Class A-JFL Distribution Conversion": With respect to any
Distribution Date (i) upon the occurrence and during the continuation of a Class
A-JFL Swap Default of the nature described in clause (i) of the definition of
Class A-JFL Swap Default while the Trustee on behalf of the Class A-JFL Swap
Trust is pursuing remedies under the Class A-JFL Swap Contract pursuant to
Section 3.34 or (ii) immediately upon and following the termination of the Class
A-JFL Swap Contract until a replacement Class A-JFL Swap Contract is entered
into, if any, the conversion of distributions on the Class A-JFL Certificates
from distributions based, in part, on floating interest payments from the Class
A-JFL Swap Counterparty under the Class A-JFL Swap Contract to distributions
based solely on fixed interest distributions in respect of the Class A-JFL
Regular Interest, as specified in Section 4.01(o).
"Class A-JFL Fixed Swap Payment": With respect to any Distribution
Date, the fixed amount required to be paid to the Class A-JFL Swap Counterparty
by the Class A-JFL Swap Trust under the Class A-JFL Swap Contract.
"Class A-JFL Floating Rate Account": The trust account or accounts
created and maintained as a separate account or accounts (or as a subaccount of
the Distribution Account) by the Trustee in the Class A-JFL Swap Trust pursuant
to Section 3.04(c), which shall be entitled "Xxxxx Fargo Bank, N.A., as Trustee,
in trust for the registered holders of Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-2, Class A-JFL
Certificates, Class A-JFL Floating Rate Account", and which must be an Eligible
Account (or a subaccount of an Eligible Account). The Class A-JFL Floating Rate
Account shall not be an asset of either REMIC I or REMIC II.
"Class A-JFL Floating Swap Payment": With respect to any
Distribution Date, the floating amount required to be paid to the Class A-JFL
Swap Trust by the Class A-JFL Swap Counterparty under the Class A-JFL Swap
Contract.
"Class A-JFL Grantor Trust": That certain "grantor trust" (within
the meaning of the Grantor Trust Provisions), the assets of which are the Class
A-JFL Grantor Trust Assets.
"Class A-JFL Grantor Trust Assets": The segregated pool of assets
consisting of the A-JFL Regular Interest, the Class A-JFL Swap Contract and the
Class A-JFL Floating Rate Account and the proceeds thereof, the beneficial
ownership of which is represented by the Class A-JFL Certificates.
"Class A-JFL Interest Distribution Amount": With respect to any
Distribution Date, an amount equal to (A) the sum of: (i) the Distributable
Certificate Interest received in respect of the Class A-JFL Regular Interest for
such Distribution Date, (ii) the Class A-JFL Net Swap Payment, if any payable by
the Class A-JFL Swap Counterparty, and (iii) any termination payment paid by the
Class A-JFL Swap Counterparty to the Trustee upon the termination of the Class
A-JFL Swap Contract provided no replacement Class A-JFL Swap Contract has been
entered into prior to such Distribution Date, less (B) the Class A-JFL Net Swap
Payment, if any payable by the Class A-JFL Swap Trust, for such Distribution
Date.
"Class A-JFL Net Swap Payment": With respect to the related Interest
Accrual Period, net payment required to be made by (A) the Class A-JFL Swap
Trust to the Class A-JFL Swap Counterparty to the extent of any excess of (i)
the Class A-JFL Fixed Swap Payment over (ii) the Class A-JFL Floating Swap
Payment for such period or (B) the Class A-JFL Swap Counterparty to the Class
A-JFL Swap Trust to the extent of any excess of (x) the Class A-JFL Floating
Swap Payment for such period over (y) the Class A-JFL Fixed Swap Payment for
such period.
"Class A-JFL Pass-Through Rate": For any Distribution Date on which
a Class A-JFL Distribution Conversion has not occurred and is not continuing, a
per annum rate equal to LIBOR plus 0.3500% and, for any Distribution Date on
which a Class A-JFL Distribution Conversion has occurred and is continuing a per
annum rate equal to the Weighted Average Adjusted Net Mortgage Rate.
"Class A-JFL Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the amount of principal allocated pursuant
to Section 4.01 in respect of the Class A-JFL Regular Interest on such
Distribution Date.
"Class A-JFL Regular Interest": The uncertificated interest in REMIC
II, designated as "Class A-JFL", constituting a "regular interest" in REMIC II
for purposes of the REMIC Provisions and having the characteristics attributable
thereto in this Agreement.
"Class A-JFL Regular Interest Pass-Through Rate": A per annum rate
equal to the Weighted Average Adjusted Net Mortgage Rate.
"Class A-JFL Swap Contract": The 1992 ISDA Master Agreement
(Multi-Currency Cross Border) together with the related schedule, confirmation
and any annexes thereto, dated as of June 6, 2007, by and among the A-JFL Swap
Counterparty and the Trustee, solely in its capacity as Trustee, on behalf of
the Class A-JFL Swap Trust, or any replacement interest rate swap contract
entered into by the Trustee in accordance with this Agreement.
"Class A-JFL Swap Counterparty": Bear Xxxxxxx Capital Markets Inc.,
a Delaware corporation, acting in such capacity or its successor in interest or
any swap counterparty under a replacement Class A-JFL Swap Contract.
"Class A-JFL Swap Default": Any failure on the part of the Class
A-JFL Swap Counterparty to (i) make a required payment under the Class A-JFL
Swap Contract, as and when due thereunder or (ii) any early termination date as
designated under the Class A-JFL Swap Contract shall have occurred.
"Class A-JFL Swap Termination Fees": Any fees or expenses payable by
the Class A-JFL Swap Counterparty to the Class A-JFL Swap Trust in connection
with a Class A-JFL Swap Default, termination of the Class A-JFL Swap Contract or
liquidation of the Class A-JFL Swap Contract, as specified in the Class A-JFL
Swap Contract.
"Class A-JFL Swap Trust": The corpus of a trust and designated as
the "Class A-JFL Swap Trust", consisting of the Class A-JFL Grantor Trust
established on or prior to the Closing Date and maintained in the name of the
Swap Trustee for the benefit of each of the holders of the Class A-JFL
Certificates. For the avoidance of doubt, the Class A-JFL Swap Trust does not
constitute a part of the Trust Fund.
"Class A-M Certificate": Any one of the Certificates with a "Class
A-M" designation on the face thereof, substantially in the form of Exhibit A-9
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-M Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class B Certificate": Any one of the Certificates with a "Class B"
designation on the face thereof, substantially in the form of Exhibit A-12
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class B Pass-Through Rate": A per annum rate equal to the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class C Certificate": Any one of the Certificates with a "Class C"
designation on the face thereof, substantially in the form of Exhibit A-13
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class C Pass-Through Rate": A per annum rate equal to the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class D Certificate": Any one of the Certificates with a "Class D"
designation on the face thereof, substantially in the form of Exhibit A-14
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class D Pass-Through Rate": A per annum rate equal to the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class E Certificate": Any one of the Certificates with a "Class E"
designation on the face thereof, substantially in the form of Exhibit A-15
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class E Pass-Through Rate": A per annum rate equal to the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class F Certificate": Any one of the Certificates with a "Class F"
designation on the face thereof, substantially in the form of Exhibit A-16
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class F Pass-Through Rate": A per annum rate equal to the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class G Certificate": Any one of the Certificates with a "Class G"
designation on the face thereof, substantially in the form of Exhibit A-17
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class G Pass-Through Rate": A per annum rate equal to the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class H Certificate": Any one of the Certificates with a "Class H"
designation on the face thereof, substantially in the form of Exhibit A-18
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class H Pass-Through Rate": A per annum rate equal to the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class J Certificate": Any one of the Certificates with a "Class J"
designation on the face thereof, substantially in the form of Exhibit A-19
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class J Pass-Through Rate": A per annum rate equal to the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class K Certificate": Any one of the Certificates with a "Class K"
designation on the face thereof, substantially in the form of Exhibit A-20
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class K Pass-Through Rate": A per annum rate equal to the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class L Certificate": Any one of the Certificates with a "Class L"
designation on the face thereof, substantially in the form of Exhibit A-21
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class L Pass-Through Rate": A per annum rate equal to 5.3690%;
provided, however, the Class L Pass-Through Rate shall not exceed the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class M Certificate": Any one of the Certificates with a "Class M"
designation on the face thereof, substantially in the form of Exhibit A-22
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class M Pass-Through Rate": A per annum rate equal to 5.3690%;
provided, however, the Class M Pass-Through Rate shall not exceed the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class N Certificate": Any one of the Certificates with a "Class N"
designation on the face thereof, substantially in the form of Exhibit A-23
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class N Pass-Through Rate": A per annum rate equal to 5.3690%;
provided, however, the Class N Pass-Through Rate shall not exceed the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class O Certificate": Any one of the Certificates with a "Class O"
designation on the face thereof, substantially in the form of Exhibit A-24
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class O Pass-Through Rate": A per annum rate equal to 5.3690%;
provided, however, the Class O Pass-Through Rate shall not exceed the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class P Certificate": Any one of the Certificates with a "Class P"
designation on the face thereof, substantially in the form of Exhibit A-25
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class P Pass-Through Rate": A per annum rate equal to 5.3690%;
provided, however, the Class P Pass-Through Rate shall not exceed the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class Principal Balance": The aggregate principal amount of any
Class of Sequential Pay Certificates and the Class A-2FL and Class A-JFL Regular
Interests outstanding as of any date of determination. As of the Closing Date,
the Class Principal Balance of each such Class of Sequential Pay Certificates or
Class A-2FL or Class A-JFL Regular Interest, as applicable, shall equal the
Initial Class Principal Balance thereof. On each Distribution Date, the Class
Principal Balance of each Class of Sequential Pay Certificates and the Class
A-2FL and Class A-JFL Regular Interests shall be permanently reduced by the
amount of any distributions of principal made thereon on such Distribution Date
pursuant to Section 4.01(b), and shall be further permanently reduced on such
Distribution Date as and to the extent provided in Section 4.04. The Class
Principal Balance of the Class A-2FL and Class A-JFL Certificates shall be equal
at all times to the Class Principal Balance of the Class A-2FL and Class A-JFL
Regular Interest, respectively.
"Class Q Certificate": Any one of the Certificates with a "Class Q"
designation on the face thereof, substantially in the form of Exhibit A-26
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class Q Pass-Through Rate": A per annum rate equal to 5.3690%;
provided, however, the Class Q Pass-Through Rate shall not exceed the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class S Certificate": Any one of the Certificates with a "Class S"
designation on the face thereof, substantially in the form of Exhibit A-27
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class S Pass-Through Rate": A per annum rate equal to 5.3690%;
provided, however, the Class S Pass-Through Rate shall not exceed the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class R-I Certificate": Any one of the Certificates with a "Class
R-I" designation on the face thereof, substantially in the form of Exhibit A-28
attached hereto, and evidencing the sole Class of "residual interest" REMIC I
for purposes of the REMIC Provisions.
"Class R-II Certificate": Any one of the Certificates with a "Class
R-II" designation on the face thereof, substantially in the form of Exhibit A-29
attached hereto, and evidencing the sole Class of "residual interest" in REMIC
II for purposes of the REMIC Provisions.
"Class V Certificate": Any one of the Certificates with a "Class V"
designation on the face thereof, substantially in the form of Exhibit A-30
attached hereto, and evidencing undivided beneficial interests in the portion of
the Trust Fund consisting of Excess Interest and the Excess Interest
Distribution Account.
"Class XW Certificate": Any one of the Certificates with a "Class
XW" designation on the face thereof, substantially in the form of Exhibit A-8
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class XW Notional Amount": As of any date of determination, the sum
of the then Component Notional Amounts of all of the Components.
"Class XW Pass-Through Rate": With respect to the initial
Distribution Date, 0.0469% per annum, and for any subsequent Distribution Date,
the weighted average of the Class XW Strip Rates for the respective Components
for such Distribution Date (weighted on the basis of the respective Component
Notional Amounts of such Components outstanding immediately prior to such
Distribution Date).
"Class XW Strip Rate": With respect to any Class of Components for
any Distribution Date, a rate per annum equal to (i) the Weighted Average
Adjusted Net Mortgage Rate for such Distribution Date, minus (ii) the
Pass-Through Rate for the Corresponding Certificates (provided that in no event
shall any Class XW Strip Rate be less than zero).
"Clearstream": Clearstream Banking, societe anonyme.
"Closing Date": June 6, 2007.
"CMSA": The Commercial Mortgage Securities Association, or any
association or organization that is a successor thereto. If neither such
association nor any successor remains in existence, "CMSA" shall be deemed to
refer to such other association or organization as may exist whose principal
membership consists of servicers, trustees, issuers, initial purchasers,
placement agents and underwriters generally involved in the commercial mortgage
loan securitization industry that is the principal such association or
organization in the commercial mortgage loan securitization industry and one of
whose principal purposes is the establishment of industry standards for
reporting transaction-specific information relating to commercial mortgage
pass-through certificates and commercial mortgage-backed bonds and the
commercial mortgage loans and foreclosed properties underlying or backing them
to investors holding or owning such certificates or bonds, and any successor to
such other association or organization. If an organization or association
described in one of the preceding sentences of this definition does not exist,
"CMSA" shall be deemed to refer to such other association or organization as
shall be selected by the Master Servicer and reasonably acceptable to the
Trustee, the Special Servicer and the Directing Certificateholder.
"CMSA Advance Recovery Report": The monthly report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Advance Recovery Report" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "Advance Recovery Report" available as of the Closing Date on
the CMSA Website, is reasonably acceptable to the Trustee.
"CMSA Bond Level File": The monthly report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Bond Level File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and is reasonably
acceptable to the Trustee.
"CMSA Collateral Summary File": The report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Collateral Summary File" available as of the Closing Date on the CMSA Website,
or such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and is reasonably
acceptable to the Trustee.
"CMSA Comparative Financial Status Report": A report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Comparative Financial Status Report" available as of the Closing
Date on the CMSA Website, or such other form for the presentation of such
information as may from time to time be recommended by the CMSA for commercial
mortgage securities transactions generally and is reasonably acceptable to the
Master Servicer and the Special Servicer.
"CMSA Delinquent Loan Status Report": A report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Delinquent Loan Status Report" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and is
reasonably acceptable to the Master Servicer and the Special Servicer.
"CMSA Financial File": A report substantially in the form of, and
containing the information called for in, the downloadable form of the
"Financial File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and is reasonably
acceptable to the Master Servicer.
"CMSA Historical Loan Modification and Corrected Mortgage Loan
Report": A report substantially in the form of, and containing the information
called for in, the downloadable form of the "Historical Loan Modification and
Corrected Mortgage Loan Report" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and is
reasonably acceptable to the Master Servicer and the Special Servicer.
"CMSA Investor Reporting Package": Collectively refers to:
(a) the following seven electronic files: (i) CMSA Bond Level File,
(ii) CMSA Collateral Summary File, (iii) CMSA Property File, (iv) CMSA
Loan Periodic Update File, (v) CMSA Loan Setup File, (vi) CMSA Financial
File, and (vii) CMSA Special Servicer Loan File;
(b) the following eight supplemental reports: (i) CMSA Comparative
Financial Status Report, (ii) CMSA Delinquent Loan Status Report, (iii)
CMSA Historical Loan Modification and Corrected Mortgage Loan Report, (iv)
CMSA Operating Statement Analysis Report, (v) CMSA NOI Adjustment
Worksheet, (vi) CMSA REO Status Report, (vii) CMSA Servicer Watch List and
(viii) CMSA Loan Level Reserve - LOC Report;
(c) the CMSA Advance Recovery Report; and
(d) such other reports as CMSA may hereafter designate as part of
the CMSA Investor Reporting Package that are reasonably acceptable to the
Master Servicer, Special Servicer or Trustee, as applicable.
"CMSA Loan Level Reserve-LOC Report": The monthly report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Loan Level Reserve LOC Report" available as of the
Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be recommended by the CMSA for commercial mortgage securities transactions
generally and is reasonably acceptable to the Master Servicer.
"CMSA Loan Periodic Update File": The monthly report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Loan Periodic Update File" available as of the Closing Date on the
CMSA Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and is
reasonably acceptable to the Master Servicer, the Special Servicer and the
Trustee.
"CMSA Loan Setup File": The report substantially in the form of, and
containing the information called for in, the downloadable form of the "Loan
Setup File" available as of the Closing Date on the CMSA Website, or such other
form for the presentation of such information and containing such additional
information as may from time to time be recommended by the CMSA for commercial
mortgage securities transactions generally and is reasonably acceptable to the
Master Servicer, the Special Servicer and the Trustee.
"CMSA NOI Adjustment Worksheet": A report substantially in the form
of, and containing the information called for in, the downloadable form of the
"NOI Adjustment Worksheet" available as of the Closing Date on the CMSA Website,
or such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and is acceptable to the
Master Servicer or the Special Servicer, as applicable, and in any event, shall
present the computations made in accordance with the methodology described in
such form to "normalize" the full year net operating income and debt service
coverage numbers used in the other reports required by this Agreement.
"CMSA Operating Statement Analysis Report": A report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Operating Statement Analysis Report" available as of the Closing
Date on the CMSA Website or in such other form for the presentation of such
information and containing such additional information as may from time to time
be recommended by the CMSA for commercial mortgage-backed securities
transactions generally and is reasonably acceptable to the Master Servicer.
"CMSA Property File": A report substantially in the form of, and
containing the information called for in, the downloadable form of the "Property
File" available as of the Closing Date on the CMSA Website, or such other form
for the presentation of such information and containing such additional
information as may from time to time be recommended by the CMSA for commercial
mortgage securities transactions generally and is reasonably acceptable to the
Master Servicer and the Special Servicer.
"CMSA Reconciliation of Funds Report": The report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Reconciliation of Funds Report" available as of the Closing Date on the
CMSA Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and is
reasonably acceptable to the Trustee.
"CMSA REO Status Report": A report substantially in the form of, and
containing the information called for in, the downloadable form of the "REO
Status Report" available as of the Closing Date on the CMSA Website, or in such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage securities transactions generally and is reasonably
acceptable to the Special Servicer.
"CMSA Servicer Watch List": For any Determination Date, a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Servicer Watch List" available as of the Closing Date
on the CMSA Website, or in such other final form for the presentation of such
information and containing such additional information as may from time to time
be promulgated as recommended by the CMSA for commercial mortgage securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "Servicer Watch
List" available as of the Closing Date on the CMSA Website, is reasonably
acceptable to the Master Servicer or the Special Servicer, as applicable.
"CMSA Special Servicer Loan File": The monthly report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Special Servicer Loan File" available as of the Closing Date on the
CMSA Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and is
reasonably acceptable to the Special Servicer.
"CMSA Website": The CMSA's Website located at "xxx.xxxx.xxx" or such
other primary website as the CMSA may establish for dissemination of its report
forms.
"Code": The Internal Revenue Code of 1986, as amended.
"Collection Period": With respect to any Distribution Date, the
period commencing immediately following the Determination Date in the calendar
month preceding the month in which such Distribution Date occurs (or, in the
case of the initial Distribution Date, commencing immediately following the
Cut-off Date) and ending on and including the Determination Date in the calendar
month in which such Distribution Date occurs.
"Commission": The Securities and Exchange Commission.
"Companion Loan": Each of the Beacon Seattle & DC Portfolio
Companion Loans, the One Park Avenue Pari Passu Companion Loan, the 000
Xxxxxxxxx Xxxxxx Pari Passu Companion Loan and the Parkway Chevrolet-Tomball A/B
Companion Loan, as applicable.
"Companion Loan Securities": Any class of securities backed, wholly
or partially, by any Beacon Seattle & DC Portfolio Companion Loan, the One Park
Avenue Pari Passu Companion Loan or the 000 Xxxxxxxxx Xxxxxx Pari Passu
Companion Loan.
"Companion Loan Holder": With respect to the Beacon Seattle & DC
Portfolio Mortgage Loan, each Beacon Seattle & DC Portfolio Companion Loan
Holder; with respect to the One Park Avenue Pari Passu Companion Loan, the One
Park Avenue Companion Loan Holder; with respect to the 000 Xxxxxxxxx Xxxxxx Pari
Passu Companion Loan, the 000 Xxxxxxxxx Xxxxxx Companion Loan Holder; and with
respect to the Parkway Chevrolet-Tomball A/B Companion Loan, the holder of the
Parkway Chevrolet-Tomball Note B.
"Compensating Interest Payment": With respect to any Distribution
Date, any payment made by the Master Servicer pursuant to Section 3.19(e) to
cover any Balloon Payment Interest Shortfall and Prepayment Interest Shortfalls
incurred during the related Collection Period.
"Component": Each of Component XX-0, Xxxxxxxxx XX-0, Component
XA-2FL, Component XA-3, Component XA-AB, Component XX-0, Xxxxxxxxx XX-0X,
Component XA-M, Component XA-J, Component XA-JFL, Component XB, Component XC,
Component XD, Component XE, Component XF, Component XG, Component XH, Component
XJ, Component XK, Component XL, Component XM, Component XN, Component XO,
Component XP, Component XQ and Component XS.
"Component Notional Amount": With respect to each Component and any
date of determination, an amount equal to the then REMIC I Principal Balance of
its Corresponding REMIC I Regular Interest.
"Component XA-1": One of the 26 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-1 as of any date of
determination.
"Component XA-1A": One of the 26 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-1A as of any date of
determination.
"Component XA-2": One of the 26 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-2 as of any date of
determination.
"Component XA-2FL": One of the 26 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-2FL as of any date of
determination.
"Component XA-3": One of the 26 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-3 as of any date of
determination.
"Component XA-AB": One of the 26 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-AB as of any date of
determination.
"Component XA-4": One of the 26 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-4 as of any date of
determination.
"Component XA-J": One of the 26 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-J as of any date of
determination.
"Component XA-JFL": One of the 26 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-JFL as of any date of
determination.
"Component XA-M": One of the 26 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-M as of any date of
determination.
"Component XB": One of the 26 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LB as of any date of
determination.
"Component XC": One of the 26 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LC as of any date of
determination.
"Component XD": One of the 26 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LD as of any date of
determination.
"Component XE": One of the 26 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LE as of any date of
determination.
"Component XF": One of the 26 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LF as of any date of
determination.
"Component XG": One of the 26 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LG as of any date of
determination.
"Component XH": One of the 26 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LH as of any date of
determination.
"Component XJ": One of the 26 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LJ as of any date of
determination.
"Component XK": One of the 26 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LK as of any date of
determination.
"Component XL": One of the 26 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LL as of any date of
determination.
"Component XM": One of the 26 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LM as of any date of
determination.
"Component XN": One of the 26 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LN as of any date of
determination.
"Component XO": One of the 26 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LO as of any date of
determination.
"Component XP": One of the 26 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LP as of any date of
determination.
"Component XQ": One of the 26 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LQ as of any date of
determination.
"Component XS": One of the 26 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LS as of any date of
determination.
"Condemnation Proceeds": All cash amounts received by the Master
Servicer or the Special Servicer in connection with the taking of all or a part
of a Mortgaged Property by exercise of the power of eminent domain or
condemnation, exclusive of any portion thereof required to be released to the
related Mortgagor or any other third-party in accordance with applicable law
and/or the terms and conditions of the related loan documents or any other
applicable document.
"Confidential Information": As defined in Section 3.24.
"Control Appraisal Period": With respect to the Parkway
Chevrolet-Tomball A/B Whole Loan, the Parkway Chevrolet-Tomball Control
Appraisal Period.
"Controlling Class": As of any date of determination, the
outstanding Class of Sequential Pay Certificates, Class A-2FL Certificates or
Class A-JFL Certificates with the lowest payment priority (the Class A Senior
Certificates being treated as a single Class for this purpose and the Class A-J
and Class A-JFL Certificates being treated as a single class for this purpose)
that has a then outstanding Certificate Balance at least equal to 25% of its
initial Certificate Balance (or, if no Class of Sequential Pay Certificates,
Class A-2FL Certificates or Class A-JFL Certificates has a Certificate Balance
at least equal to 25% of its initial Certificate Balance, then the Controlling
Class will be the outstanding Class of Sequential Pay Certificates, Class A-2FL
Certificates or Class A-JFL Certificates with the then largest outstanding Class
Principal Balance). The Controlling Class as of the Closing Date will be the
Class S Certificates.
"Controlling Class Certificateholders": Each Holder (or Certificate
Owner, if applicable) of a Certificate of the Controlling Class as certified to
the Trustee from time to time by such Holder (or Certificate Owner).
"Controlling Class Option Holder": The Purchase Option held by the
Majority Certificateholder of the Controlling Class pursuant to Section 3.18(c).
"Controlling Holder": With respect to (i) the One Park Avenue Pari
Passu Whole Loan, the One Park Avenue Controlling Holder; (ii) the 000 Xxxxxxxxx
Xxxxxx Pari Passu Whole Loan, the 000 Xxxxxxxxx Xxxxxx Controlling Holder, and
(iii) the Parkway Chevrolet-Tomball A/B Whole Loan, the Parkway
Chevrolet-Tomball Controlling Holder. Each such initial Controlling Holder shall
be set forth on Schedule VII hereto.
"Corporate Trust Office": The principal corporate trust office of
the Trustee, for purposes of Certificate transfer services, at the date of the
execution of this Agreement is located at (i) with respect to maintenance of the
Certificate Register and the transfer and exchange of Certificates, the office
of the Trustee located at Xxxxx Fargo Center, Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000, Corporate Trust Services (CMBS) BACM 2007-2,
and (ii) for all other purposes, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx
00000, Attention: Corporate Trust Services Group (CMBS), Banc of America
Commercial Mortgage Inc., Commercial Mortgage Pass-Through Certificates, Series
2007-2, and with respect to any successor Trustee, the principal office thereof
as designated in writing to the Depositor.
"Corrected Serviced Loan": Any Serviced Loan that had been a
Specially Serviced Loan but as to which all Servicing Transfer Events have
ceased to exist other than in connection with a sale pursuant to Section 3.18.
"Corresponding Certificate": As defined in the Preliminary Statement
with respect to any Corresponding Component or any Corresponding REMIC I Regular
Interest.
"Corresponding Component": As defined in the Preliminary Statement
with respect to any Corresponding Certificate or any Corresponding REMIC I
Regular Interest.
"Corresponding REMIC I Regular Interest": As defined in the
Preliminary Statement with respect to any Corresponding Certificate or any
Corresponding Component.
"Covered Risks": As defined in Section 3.07(a).
"CPR": As defined in the Base Prospectus.
"Cross-Collateralized Mortgage Loan": Any Loan that is, by its
terms, cross- collateralized and cross- defaulted with any other Loan.
"Cross-Collateralized Set": Any set of Loans that is cross-
collateralized and cross- defaulted with each other.
"CUSIP Number": With respect to each Certificate, the identification
number provided by the CUSIP Service Bureau and appearing on the face of such
Certificate.
"Current Principal Distribution Amount": With respect to any
Distribution Date, an amount (calculated in accordance with Section 1.03) equal
to the aggregate of, without duplication:
(a) the principal portions of all Monthly Payments (other than
Balloon Payments) and any Assumed Monthly Payments due or deemed due, as
the case may be, made by or on behalf of the related borrower or advanced
in respect of the Mortgage Loans in the Mortgage Pool or in such Loan
Group, as applicable, and any REO Loans for their respective Due Dates
occurring during the related Collection Period or any prior Collection
Period (if not previously distributed);
(b) all Principal Prepayments received on the Mortgage Loans in the
Mortgage Pool or in such Loan Group, as applicable, during the related
Collection Period;
(c) with respect to any Balloon Loan that is included in the
Mortgage Pool or in such Loan Group, as applicable, as to which the
related Stated Maturity Date occurred during or prior to the related
Collection Period, any payment of principal (exclusive of any Principal
Prepayment and any amount described in subclause (d) of this definition)
that was made by or on behalf of the related Mortgagor during the related
Collection Period, net of any portion of such payment that represents a
recovery of the principal portion of any Monthly Payment (other than a
Balloon Payment) due, or the principal portion of any Assumed Monthly
Payment deemed due, in respect of such Balloon Loan on a Due Date during
or prior to the related Collection Period and not previously recovered;
(d) all Liquidation Proceeds (net of Liquidation Expenses),
Insurance Proceeds (net of related expenses) and Condemnation Proceeds
(net of related expenses) received on or in respect of the Mortgage Loans
during the related Collection Period (including any amount related to the
Loss of Value Payments to the extent that such amount was transferred into
the Certificate Account pursuant to Section 3.05(g) during the related
Collection Period) that were identified and applied by the Master Servicer
as recoveries of principal thereof, in each case net of any portion of
such amounts that represents a recovery of the principal portion of any
Monthly Payment (other than a Balloon Payment) due, or of the principal
portion of any Assumed Monthly Payment deemed due, in respect of any such
Mortgage Loan on a Due Date during or prior to the related Collection
Period and not previously recovered; and
(e) all Liquidation Proceeds (net of Liquidation Expenses),
Insurance Proceeds (net of related expenses) Condemnation Proceeds (net of
related expenses) and REO Revenues (net of related expenses) received on
or in respect of any REO Properties during the related Collection Period
that were identified and applied by the Master Servicer as recoveries of
principal of the related REO Loans, in each case net of any portion of
such amounts that represents a recovery of the principal portion of any
Monthly Payment (other than a Balloon Payment) due, or of the principal
portion of any Assumed Monthly Payment deemed due, in respect of any such
REO Loan or the predecessor Mortgage Loan on a Due Date during or prior to
the related Collection Period and not previously recovered.
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage Files, which
Person shall not be the Depositor, a Mortgage Loan Seller or an Affiliate of
either of them.
"Cut-off Date": June 1, 2007 or, with respect to Loan No. 51006,
June 7, 2007.
"Cut-off Date Balance": With respect to any Mortgage Loan or
Companion Loan, the outstanding principal balance of such Loan as of the Cut-off
Date, net of all unpaid payments of principal due in respect thereof on or
before such date.
"Debt Service Coverage Ratio": With respect to any Loan, as of any
date of determination, and calculated without regard to any
cross-collateralization feature of such Loan, the ratio of (x) the Net Cash Flow
(before payment of any debt service on such Loan) generated by the related
Mortgaged Property or Mortgaged Properties during the most recently ended period
of not more than 12 months or less than three months for which financial
statements (whether or not audited) have been received by or on behalf of the
related Mortgage Loan Seller (prior to the Closing Date) or the Master Servicer
or the Special Servicer (following the Closing Date), to (y) the product of the
amount of the Monthly Payment in effect for such Loan as of such date of
determination, multiplied by the number of months represented in the financial
statements. The Master Servicer may, in accordance with CMSA reporting
standards, report Net Cash Flow with respect to each Mortgaged Property where
one or more Loans are secured by multiple Mortgaged Properties; provided,
however, for purposes of determining Debt Service Coverage Ratio compliance,
calculations shall be made at the Loan level.
"Default Charges": Any Default Interest and/or late payment charges
that are paid or payable, as the context may require, in respect of any Loan or
REO Loan.
"Default Interest": With respect to any Loan (or successor REO
Loan), any amounts collected thereon, other than late payment charges or
Prepayment Premiums, that represent interest in excess of interest accrued on
the principal balance of such Loan (or REO Loan) at the related Mortgage Rate,
such excess interest arising out of a default under such Loan.
"Defaulted Serviced Loan": A Serviced Loan:
(a) that is delinquent 60 days (without giving effect to any grace
period or acceleration of payments under the Mortgage or Mortgage Note) or
more in respect of a Monthly Payment (not including the Balloon Payment);
(b) that is delinquent with respect to a Balloon Payment, provided,
however:
(i) if (A) the related Borrower is actively seeking a
refinancing commitment, (B the related Borrower continues to make
payments in the amount of its Assumed Monthly Payment and (C the
Directing Certificateholder consents, then such Mortgage Loan shall
not become a Defaulted Serviced Loan for 60 days beyond the related
Maturity Date (without giving effect to any grace period or
acceleration of payments under the Mortgage or Mortgage Note); and
(ii) if (A) the related Mortgagor delivers to the Master
Servicer on or before the 60th day after the related Maturity Date
(without giving effect to any grace period or acceleration of
payments under the Mortgage or Mortgage Note) a refinancing
commitment reasonably acceptable to the Master Servicer (which
refinancing commitment the Master Servicer shall promptly forward to
the Special Servicer and the Directing Certificateholder), (B) the
related Borrower continues to make payments in the amount of its
Assumed Monthly Payment and (C) the Directing Certificateholder
consents,
then such Mortgage Loan shall not become a Defaulted Serviced Loan for
such longer period, not to exceed 120 days beyond the related Maturity Date,
during which the refinancing would occur; or
(c) as to which the Master Servicer or the Special Servicer has, by
written notice to the related mortgagor, accelerated the maturity of the
indebtedness evidenced by the related Mortgage Note.
"Defaulting Party": As defined in Section 7.01(b).
"Defective Mortgage Loan": Any Mortgage Loan as to which there
exists a Material Breach or a Material Document Defect that was not cured in all
material respects.
"Definitive Certificate": As defined in Section 5.03(a).
"Deleted Mortgage Loan": A Defective Mortgage Loan that is
repurchased from the Trust or replaced with one or more Replacement Mortgage
Loans, in either case as contemplated by Section 2.03.
"Denomination": As defined in Section 5.01(a).
"Depositor": Banc of America Commercial Mortgage Inc., or its
successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named. The nominee of the initial Depository for purposes
of registering those Certificates that are to be Book-Entry Certificates, is
Cede & Co. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(3) of the Uniform Commercial Code of the State of New
York and a "clearing agency" registered pursuant to the provisions of Section
17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Depository Rules": As defined in Section 5.02(b).
"Determination Date": With respect to any Distribution Date, the
earlier of (i) the 6th day of the month in which such Distribution Date occurs,
or if such 6th day is not a Business Day, the immediately preceding Business
Day, and (ii) fourth Business Day before such Distribution Date.
"Determination Information": As defined in Section 3.18(b).
"Directing Certificateholder": The Controlling Class
Certificateholder (or its designee) selected by the Majority Certificateholder
of the Controlling Class, as certified by the Trustee from time to time;
provided, however, (i) absent such selection, or (ii) until a Directing
Certificateholder is so selected, or (iii) upon receipt of a notice from a
majority of the Controlling Class, by Certificate Principal Balance, that a
Directing Certificateholder is no longer designated, the Controlling Class
Certificateholder that owns the largest aggregate Certificate Principal Balance
of the Controlling Class will be the Directing Certificateholder. The initial
Directing Certificateholder is Hyperion Brookfield Asset Management Inc.
"Directly Operate": With respect to any REO Property (other than any
REO Property related to a Non-Serviced Loan), the furnishing or rendering of
services to the tenants thereof, the management or operation of such REO
Property, the holding of such REO Property primarily for sale to customers
(other than the sale of an REO Property pursuant to Section 3.18, the
performance of any construction work thereon or any use of such REO Property in
a trade or business conducted by REMIC I other than through an Independent
Contractor; provided, however, the Special Servicer (or any Sub-Servicer on
behalf of the Special Servicer) shall not be considered to Directly Operate an
REO Property solely because the Special Servicer (or any Sub-Servicer on behalf
of the Special Servicer) establishes rental terms, chooses tenants, enters into
or renews leases, deals with taxes and insurance, or makes decisions as to, or
funds, repairs or capital expenditures with respect to such REO Property
(including, without limitation, construction activity to effect repairs or in
conjunction with leasing activity).
"Discount Rate": With respect to any applicable Prepayment Premium
calculation, is the yield on the United Stated Treasury issue with a maturity
date closest to the Maturity Date for the Mortgage Loan being prepaid (if
applicable, converted to a monthly compounded nominal yield), or an
interpolation thereof, in any case as specified and used in accordance with the
related loan documents in calculating the Prepayment Premium with respect to the
related prepayment.
"Disqualified Non-U.S. Person": With respect to a Class R-I or Class
R-II Certificate, any Non-U.S. Person or agent thereof other than (i) a Non-U.S.
Person that holds the Class R-I or Class R-II Certificate in connection with the
conduct of a trade or business within the United States and has furnished the
transferor and the Certificate Registrar with an effective IRS Form W-8ECI (or
successor form) or (ii) a Non-U.S. Person that has delivered to both the
transferor and the Certificate Registrar an opinion of a nationally recognized
tax counsel to the effect that the transfer of the Class R-I or Class R-II
Certificate to it is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such transfer of the Class R-I or
Class R-II Certificate will not be disregarded for federal income tax purposes.
"Disqualified Organization": Any of the following: (i) the United
States or a possession thereof, any State or any political subdivision thereof,
or any agency or instrumentality of any of the foregoing (other than an
instrumentality that is a corporation if all of its activities are subject to
tax and, except for Xxxxxxx Mac, a majority of its board of directors is not
selected by any such governmental unit), (ii) a foreign government,
international organization, or any agency or instrumentality of either of the
foregoing, (iii) any organization (except certain farmers' cooperatives
described in Section 521 of the Code) that is exempt from the tax imposed by
Chapter 1 of the Code (unless such organization is subject to the tax imposed by
Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381 of the Code or (v)
any other Person so designated by the REMIC Administrator based upon an Opinion
of Counsel (provided to the Trustee by such Person at its expense) that the
holding of an Ownership Interest in a REMIC Residual Certificate by such Person
may cause the Trust or any Person having an Ownership Interest in any Class of
Certificates, other than such Person, to incur a liability for any federal tax
imposed under the Code that would not otherwise be imposed but for the Transfer
of an Ownership Interest in a REMIC Residual Certificate to such Person. The
terms "United States", "State" and "international organization" shall have the
meanings set forth in Section 7701 of the Code or successor provisions.
"Distributable Certificate Interest": For any Distribution Date with
respect to any Class of REMIC II Regular Certificates and the Class A-2FL and
Class A-JFL Regular Interests, the Accrued Certificate Interest in respect of
such Class of Certificates and the Class A-2FL and Class A-JFL Regular Interests
for such Distribution Date, reduced (to not less than zero) by that portion, if
any, of the Net Aggregate Prepayment Interest Shortfall for such Distribution
Date allocated to such Class of Certificates or the Class A-2FL or Class A-JFL
Regular Interest as set forth below. The Net Aggregate Prepayment Interest
Shortfall, if any, for each Distribution Date shall be allocated, pro rata, to
each Class of REMIC II Regular Certificates and the Class A-2FL and Class A-JFL
Regular Interests based on Accrued Certificate Interest for each such Class of
Certificates or the Class A-2FL or Class A-JFL Regular Interest for such
Distribution Date.
"Distribution Account": The segregated account or accounts created
and maintained by the Trustee pursuant to Section 3.04(b) in trust for the
Certificateholders, which shall be entitled "Xxxxx Fargo Bank, N.A., as Trustee,
in trust for the registered holders of Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-2, Distribution
Account".
"Distribution Date": The 10th day of any month, or if such 10th day
is not a Business Day, the Business Day immediately following, commencing in
July 2007.
"Distribution Date Statement": As defined in Section 4.02(a).
"Document Defect": With respect to any Mortgage Loan, any document
required to be part of the related Mortgage File that has not been properly
executed, is missing, contains information that does not conform in any material
respect with the corresponding information set forth in the Mortgage Loan
Schedule (and the terms of such document have not been modified by written
instrument contained in the related Mortgage File), or does not appear to be
regular on its face.
"Domestic Global Certificate": Any of the single, permanent global
certificates that represents the Certificates sold in reliance on Rule 144A.
"DTC": As defined in Section 5.03(d).
"Due Date": With respect to (i) any Loan on or prior to its Stated
Maturity Date, the day of the month set forth in the related Mortgage Note on
which each Monthly Payment on such Loan is scheduled to be first due; (ii) any
Loan after its Stated Maturity Date, the day of the month set forth in the
related Mortgage Note on which each Monthly Payment on such Loan had been
scheduled to be first due; and (iii) any REO Loan, the day of the month set
forth in the related Mortgage Note on which each Monthly Payment on the related
Loan had been scheduled to be first due.
"Eligible Account": Any of (i) an account maintained with a federal
or state chartered depository institution or trust company, including, without
limitation, the Trustee (if it meets the following rating criteria), the
long-term unsecured debt obligations of which are rated no less than "A" by
Fitch and "AA-" by S&P (or "A-" by S&P if such depository's short-term unsecured
debt rating is no less than "A-1" by S&P) (if the deposits are to be held in the
account for more than 30 days) (or if such account is maintained with PNC Bank,
National Association, or KeyBank National Association rated no less than "A" by
Fitch and with respect to S&P meets the requirements set forth in clause (i)),
or the short-term unsecured debt obligations of which are rated no less than
"F-1" by Fitch and "A-1" by S&P (if the deposits are to be held in the account
for 30 days or less), in each case, at any time funds are on deposit therein,
(ii) a segregated trust account or accounts maintained with the corporate trust
department of a federally chartered depository institution or trust company,
including, without limitation, the Trustee, acting in its fiduciary capacity and
subject to the regulations regarding fiduciary funds on deposit therein under 12
C.F.R. ss.9.10(b) that has a combined capital surplus of at least $50,000,000,
(iii) a segregated trust account or accounts maintained with the corporate trust
department of a state chartered depository institution or trust company,
including, without limitation, the Trustee, acting in its fiduciary capacity and
subject to regulations regarding fiduciary funds on deposit therein
substantially similar to 12 C.F.R. ss.9.10(b) that has a combined capital
surplus of at least $50,000,000, or (iv) any other account that would not result
in the downgrade, qualification (if applicable) or withdrawal of the rating then
assigned by either Rating Agency to any Class of Certificates or Companion Loan
Securities (as confirmed in writing by each Rating Agency).
"Emergency Advance": Any Servicing Advance, whether or not it is a
Servicing Advance that, pursuant hereto, the Special Servicer has the option to
make or to request the Master Servicer to make, that must be made within five
Business Days of the Special Servicer's becoming aware that it must be made to
avoid any material penalty, any material harm to a Mortgaged Property or any
other material adverse consequence to the Trust Fund.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Restricted Certificate": Any Non-Investment Grade Sequential
Pay Certificate; provided that any such Certificate (a) will cease to be
considered an ERISA Restricted Certificate and (b) will cease to be subject to
the transfer restrictions contained in Section 5.02(c) if, as of the date of a
proposed transfer of such Certificate, either (i) it is rated in one of the four
highest generic ratings categories by a Rating Agency or (ii) relevant
provisions of ERISA would permit transfer of such Certificate to a Plan.
"Escrow Payment": Any payment received by the Master Servicer or the
Special Servicer for the account of any Mortgagor for application toward the
payment of real estate taxes, assessments, insurance premiums and similar items
in respect of the related Mortgaged Property.
"Euroclear": Euroclear Bank S.A./N.V., as operator of the Euroclear
System, or its successor in such capacity.
"Event of Default": One or more of the events described in Section
7.01(a).
"Excess Interest": With respect to any ARD Loan after its
Anticipated Repayment Date, all interest accrued on the principal balance of
such ARD Loan at the Excess Interest Rate (the payment of which interest shall,
under the terms of such Loan, be deferred until the entire outstanding principal
balance of such ARD Loan has been paid), together with all interest, if any,
accrued at the related Mortgage Rate on such deferred interest.
"Excess Interest Distribution Account": The segregated account or
sub-account of the Distribution Account created and maintained by the Trustee
pursuant to Section 4.06, which shall be entitled "Xxxxx Fargo Bank, N.A., as
Trustee, in trust for the registered Holders of Banc of America Commercial
Mortgage Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-2,
Excess Interest Distribution Account", and which must be an Eligible Account.
The Excess Interest Distribution Account shall not be an asset of either REMIC I
or REMIC II.
"Excess Interest Grantor Trust": A segregated asset pool within the
Trust Fund consisting of (i) the Excess Interest and (ii) the Excess Interest
Distribution Account and all funds and assets held from time to time on deposit
in the Excess Interest Distribution Account.
"Excess Interest Rate": With respect to any ARD Loan after its
Anticipated Repayment Date, the incremental increase in the Mortgage Rate for
such Loan resulting from the passage of such Anticipated Repayment Date.
"Excess Liquidation Proceeds": An amount equal to the excess, if
any, of (a) the Net Liquidation Proceeds from the sale or liquidation of a
Specially Serviced Loan or REO Property, over (b) the sum of: (i) the amount
needed to pay off the Loan or related REO Loan in full, including any related
Workout-Delayed Reimbursement Amounts or Unliquidated Advances (ii) all unpaid
Advances and any unpaid Advance Interest thereon and (iii) any related
Liquidation Fee. For the avoidance of doubt, Excess Liquidation Proceeds
allocable to any Companion Loan shall not be an asset of the Trust Fund or REMIC
I or REMIC II.
"Excess Liquidation Proceeds Account": The segregated account or
sub-account of the Distribution Account created and maintained by the Trustee
pursuant to Section 3.04(c)(iv) in trust for the Certificateholders, which shall
be entitled "Xxxxx Fargo Bank, N.A., as Trustee, in trust for the registered
holders of Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-2, Excess Liquidation Proceeds Account".
"Exchange Act": The Securities Exchange Act of 1934, as amended, and
the rules and regulations thereunder.
"Exchange Certificate": The certificate necessary to exchange an
interest in a Regulation S Global Certificate for an interest in a Domestic
Global Certificate, which is in the form of Exhibit Q attached hereto, or the
certificate necessary to exchange an interest in a Domestic Global Certificate
for an interest in a Regulation S Global Certificate, which is in the form of
Exhibit O or Exhibit P, as applicable, hereto, in each case as described in
Section 5.02(m).
"Xxxxxx Mae": The Federal National Mortgage Association or any
successor.
"FDIC": The Federal Deposit Insurance Corporation or any successor.
"Final Distribution Date": The final Distribution Date on which any
distributions are to be made on the Certificates as contemplated by Section
9.01.
"Final Recovery Determination": A determination made by the Special
Servicer, in its reasonable, good faith judgment and in accordance with the
Servicing Standard, with respect to any Loan or REO Property (other than a Loan
that is paid in full and other than a Loan or REO Property, as the case may be,
that is repurchased or replaced by the related Mortgage Loan Seller pursuant to
the related Mortgage Loan Purchase and Sale Agreement or purchased by the Master
Servicer, the Special Servicer or any Controlling Class Certificateholder(s)
pursuant to Section 9.01), that there has been a recovery of all related
Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds and other
payments or recoveries that will ultimately be recoverable.
"FIRREA": The Financial Institutions Reform, Recovery and
Enforcement Act of 1989 (as amended).
"Fitch": Fitch, Inc. or its successor in interest. If neither Fitch
nor any successor remains in existence, "Fitch" shall be deemed to refer to such
other nationally recognized statistical rating agency or other comparable Person
designated by the Depositor, notice of which designation shall be given to the
Trustee, the Master Servicer, the Special Servicer and the REMIC Administrator,
and specific ratings of Fitch herein referenced shall be deemed to refer to the
equivalent ratings of the party so designated.
"Form 8-K Disclosure Information": As defined in Section 11.07.
"Xxxxxxx Mac": The Federal Home Loan Mortgage Corporation or any
successor.
"Free Writing Prospectus": The meaning assigned to "Free Writing
Prospectus" in the Underwriting Agreement.
"Global Certificates": The Certificates represented by the
Regulation S Global Certificates or the Domestic Global Certificates.
"Grantor Trust": Each of the Excess Interest Grantor Trust, Class
A-2FL Grantor Trust and Class A-JFL Grantor Trust.
"Ground Lease": The ground lease pursuant to which any Mortgagor
holds a leasehold interest in the related Mortgaged Property and any estoppels
or other agreements executed and delivered by the ground lessor in favor of the
lender under the Mortgage Loan.
"Group 1 Mortgage Loan": Any Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Loan Group 1.
"Group 2 Mortgage Loan": Any Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Loan Group 2.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including, without limitation, those so
identified pursuant to CERCLA or any other U.S. federal, state or local
environmental related laws and regulations (including any applicable laws of the
Commonwealth of Puerto Rico), and specifically including, without limitation,
asbestos and asbestos-containing materials, polychlorinated biphenyls ("PCBs"),
radon gas, petroleum and petroleum products, urea formaldehyde and any
substances classified as being "in inventory", "usable work in process" or
similar classification that would, if classified as unusable, be included in the
foregoing definition.
"Holder": See the definition of "Certificateholder" in this Section
1.01.
"HUD-Approved Servicer": A servicer that is a mortgagee approved by
the Secretary of Housing and Urban Development pursuant to Sections 207 and 211
of the National Housing Act.
"Independent": When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator and any and
all Affiliates thereof, (ii) does not have any direct financial interest in or
any material indirect financial interest in any of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator or any
Affiliate thereof, and (iii) is not connected with the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator or any
Affiliate thereof as an officer, employee, promoter, placement agent, trustee,
partner, director or Person performing similar functions; provided, however, a
Person shall not fail to be Independent of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the REMIC Administrator or any Affiliate
thereof merely because such Person is the beneficial owner of 1% or less of any
Class of securities issued by the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator or any Affiliate thereof, as the
case may be; provided, further, such ownership constitutes less than 1% of the
total assets owned by such Person.
"Independent Contractor": Any Person that would be an "independent
contractor" with respect to REMIC I within the meaning of Section 856(d)(3) of
the Code if REMIC I were a real estate investment trust (except that the
ownership test set forth in that section shall be considered to be met by (i)
any Person that owns, directly or indirectly, 35 percent or more of any Class of
Certificates, or such other interest in any Class of Certificates as is set
forth in an Opinion of Counsel, which shall not be an expense of the Trustee,
the REMIC Administrator or the Trust, delivered to the Trustee and the REMIC
Administrator), so long as REMIC I does not receive or derive any income from
such Person and provided that the relationship between such Person and REMIC I
is at arm's length, all within the meaning of Treasury Regulations Section
1.856-4(b)(5), or (ii) any other Person upon receipt by the Trustee and the
REMIC Administrator of an Opinion of Counsel, which shall be at no expense to
the Trustee, the REMIC Administrator or the Trust, to the effect that the taking
of any action in respect of any REO Property by such Person, subject to any
conditions therein specified, that is otherwise herein contemplated to be taken
by an Independent Contractor will not cause such REO Property to cease to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code, or cause any income realized in respect of such REO Property to fail
to qualify as Rents from Real Property.
"Initial Class XW Notional Amount": With respect to the Class XW
Certificates, the initial Class XW Notional Amount thereof as of the Closing
Date is equal to $3,17,686,516.
"Initial Class Principal Balance": With respect to any Class of
Sequential Pay Certificates and the Class A-2FL and Class A-JFL Regular
Interests, the initial Class Principal Balance thereof as of the Closing Date,
in each case as set forth in the Preliminary Statement hereto.
"Initial Pool Balance": The aggregate Cut-off Date Balance of all
the Mortgage Loans included in the Trust Fund as of the Closing Date.
"Initial Purchaser": Each of Banc of America Securities LLC and
Bear, Xxxxxxx & Co. Inc.
"Initial Resolution Period": As defined in Section 2.03.
"Institutional Accredited Investor": As defined in Section 5.02(b).
"Insurance Policy": With respect to any Loan or Whole Loan or REO
Property, any hazard insurance policy, seismic (earthquake) insurance policy,
business interruption insurance policy, flood insurance policy, title policy or
other insurance policy that is maintained from time to time in respect of such
Loan (or the related Mortgaged Property) or in respect of such REO Property, as
the case may be.
"Insurance Proceeds": Proceeds paid under any Insurance Policy, to
the extent such proceeds are not applied to the restoration of the related
Mortgaged Property or REO Property or released to the Mortgagor or any other
third party as permitted under the related loan documents, in either case, in
accordance with the Servicing Standard and with applicable law.
"Intercreditor Agreement": The Beacon Seattle & DC Portfolio
Intercreditor Agreement, the One Park Avenue Intercreditor Agreement, the 000
Xxxxxxxxx Xxxxxx Intercreditor Agreement and the Parkway Chevrolet-Tomball
Intercreditor Agreement, as applicable.
"Interest Accrual Basis": The basis on which interest accrues in
respect of any Mortgage Loan, any REMIC I Regular Interest or any Class of REMIC
II Regular Certificates or the Class A-2FL and Class A-JFL Regular Interests,
consisting of one of the following: (i) a 30/360 Basis; or (ii) an Actual/360
Basis.
"Interest Accrual Period": With respect to each Class of REMIC I
Regular Interests, each Class of REMIC II Regular Certificates and the Class
A-2FL and Class A-JFL Regular Interests for any Distribution Date, is the
calendar month immediately preceding the month in which such Distribution Date
occurs. With respect to the Class A-2FL and Class A-JFL Certificates, interest
shall be calculated on an Actual/360 Basis and, for any Distribution Date, shall
be deemed to accrue during the period from and including the 10th calendar day
of the month preceding the month in which the related Distribution Date occurs
(or, in the case of the first Distribution Date, the Closing Date) to but
excluding the 10th calendar day of the month in which related Distribution Date
occurs; provided, however, if a Class A-2FL or Class A-JFL Distribution
Conversion, as applicable, has occurred, the Interest Accrual Period with
respect to the Class A-2FL or Class A-JFL Certificates, as applicable, shall be
the same as the Interest Accrual Period for the Class A-2FL or Class A-JFL
Regular Interest, as applicable.
"Interest Reserve Account": The segregated account or sub-account of
the Certificate Account created and maintained by the Master Servicer pursuant
to Section 4.05 in trust for the Certificateholders, which shall be entitled
"Bank of America, National Association, as Master Servicer, in trust for the
registered holders of Banc of America Commercial Mortgage Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-2, Interest Reserve Account".
"Investment Account": As defined in Section 3.06(a).
"Investment Grade Sequential Pay Certificates": The Class A, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class J and Class K
Certificates.
"Investment Representation Letter": As defined in Section 5.02(b).
"IRS": The Internal Revenue Service or any successor.
"Late Collections": With respect to any Serviced Loan, all amounts
received thereon during any Collection Period, whether as payments, Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds or otherwise, that
represent late collections of the principal and/or interest portions of a
Monthly Payment (other than a Balloon Payment) or an Assumed Monthly Payment in
respect of such Serviced Loan due or deemed due, as the case may be, for a Due
Date in a previous Collection Period, or for a Due Date coinciding with or
preceding the Cut-off Date, and not previously received or recovered. With
respect to any REO Loan, all amounts received in connection with the related REO
Property during any Collection Period, whether as Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds, REO Revenues or otherwise, that
represent late collections of the principal and/or interest portions of a
Monthly Payment (other than a Balloon Payment) or an Assumed Monthly Payment in
respect of the related Serviced Loan or of an Assumed Monthly Payment in respect
of such REO Loan due or deemed due, as the case may be, for a Due Date in a
previous Collection Period and not previously received or recovered.
"Letter of Credit": With respect to any Loan or Whole Loan, any
third-party letter of credit delivered by or at the direction of the Mortgagor
pursuant to the terms of such Loan in lieu of the establishment of, or deposit
otherwise required to be made into, a Reserve Fund.
"LIBOR": With respect to the Class A-2FL and A-JFL Certificates and
each Interest Accrual Period, the rate for deposits in U.S. Dollars, for a
period equal to one month, which appears on the Reuters Screen LIBOR01 Page as
of 11:00 a.m., London time, on the related LIBOR Determination Date. If such
rate does not appear on Reuters Screen LIBOR01 Page, the rate for that Interest
Accrual Period shall be determined on the basis of the rates at which deposits
in U.S. Dollars are offered by any four major reference banks in the London
interbank market selected by the Trustee to provide such bank's offered
quotation of such rates at approximately 11:00 a.m., London time, on the related
LIBOR Determination Date to prime banks in the London interbank market for a
period of one month, commencing on the first day of such Interest Accrual Period
and in an amount that is representative for a single such transaction in the
relevant market at the relevant time. The Trustee shall request the principal
London office of any four major reference banks in the London interbank market
selected by the Trustee to provide a quotation of such rates, as offered by each
such bank. If at least two such quotations are provided, the rate for that
Interest Accrual Period shall be the arithmetic mean of the quotations. If fewer
than two quotations are provided as requested, the rate for that Interest
Accrual Period shall be the arithmetic mean of the rates quoted by major banks
in New York City selected by the Trustee, at approximately 11:00 a.m., New York
City time, on the LIBOR Determination Date with respect to such Interest Accrual
Period for loans in U.S. Dollars to leading European banks for a period equal to
one month, commencing on the first day of the related Interest Accrual Period
with respect to such Interest Accrual Period and in an amount that is
representative for a single such transaction in the relevant market at the
relevant time. The Trustee shall determine LIBOR for each Interest Accrual
Period and the determination of LIBOR by Trustee shall be binding absent
manifest error.
"LIBOR Determination Date": (i) with respect to the initial Interest
Accrual Period, the date that is two LIBOR Business Days prior to the Closing
Date, and (ii) with respect to each Interest Accrual Period thereafter, the date
that is two LIBOR Business Days prior to the beginning of the related Interest
Accrual Period.
"LIBOR Business Day": Any day on which commercial banks are open for
international business (including dealings in U.S. Dollar deposits) in London,
England.
"Liquidation Event": With respect to any Serviced Loan, any of the
following events: (i) such Serviced Loan is paid in full; (ii) a Final Recovery
Determination is made with respect to such Serviced Loan; (iii) the related
Mortgage Loan (or related REO Loan) is repurchased by the related Mortgage Loan
Seller pursuant to Section 4 of the Mortgage Loan Purchase Agreement; (iv) the
related Mortgage Loan is purchased by the Directing Certificateholder, the
Special Servicer the related Controlling Holder (if the Defaulted Loan is an A/B
Mortgage Loan included in the related A/B Whole Loan) or an assignee of such
Person pursuant to Section 3.18(c) or the related Mezzanine Loan Holder (if the
related Defaulted Serviced Loan has a related Mezzanine Loan) pursuant to any
Mezzanine Intercreditor Agreement; (v) such Loan is purchased by the Special
Servicer or the Master Servicer pursuant to Section 9.01; or (vi) in the case of
an A/B Whole Loan, such A/B Whole Loan is purchased by the related A/B Whole
Loan Purchase Option Holder or its designee pursuant to the related
Intercreditor Agreement. With respect to any REO Property (and the related REO
Loan), any of the following events: (i) a Final Recovery Determination is made
with respect to such REO Property or (ii) such REO Property is purchased by the
Master Servicer or the Special Servicer pursuant to Section 9.01.
"Liquidation Expenses": All customary, reasonable and necessary
"out-of-pocket" costs and expenses due and owing (but not otherwise covered by
Servicing Advances) in connection with the liquidation of any Specially Serviced
Loan or REO Property (other than any REO Property related to a Non-Serviced
Loan) pursuant to Section 3.09 or Section 3.18 (including, without limitation,
legal fees and expenses, committee or referee fees and, if applicable, brokerage
commissions and conveyance taxes).
"Liquidation Fee": With respect to each Specially Serviced Loan or
REO Property (other than any REO Property related to a Non-Serviced Loan), the
fee designated as such and payable to the Special Servicer pursuant to the third
paragraph of Section 3.11(c). Notwithstanding the foregoing and for the
avoidance of doubt, no Liquidation Fee shall be payable in connection with (a)
the purchase of a Defaulted Serviced Loan by the Majority Certificateholder of
the Controlling Class pursuant to any applicable purchase right set forth in
Section 3.18(c) or Section 3.18(l) or with respect to a purchase of a related
Defaulted Serviced Loan at its fair value as determined in Section 3.18, unless
such purchase is by an assignee of the Majority Certificateholder of the
Controlling Class or the Special Servicer, such assignee is not an affiliate of
the Majority Certificateholder of the Controlling Class or the Special Servicer,
such assignment is for no material consideration, and provided such purchase
occurs or purchase right is exercised more than 90 days from the date that the
Special Servicer has initially determined the fair value of the related Mortgage
Loan; (b) the purchase of any Mortgage Loan by the related A/B Whole Loan
Purchase Option Holder (or its designee) or the holder of a subordinate note or
a Mezzanine Loan (or its designee) pursuant to a purchase option contained in
the related intercreditor agreement, unless such purchase occurs or purchase
right is exercised more than 90 days from the date that the Special Servicer has
initially determined the related Mortgage Loan has become a Specially Serviced
Loan; (c) the purchase option of the Majority Certificateholder of the
Controlling Class, the Master Servicer or the Special Servicer pursuant to
Section 9.01; (d) the repurchase by the related Mortgage Loan Seller of a
Mortgage Loan so required to be repurchased by it pursuant to Section 4 of the
related Mortgage Loan Purchase and Sale Agreement and Section 2.03 within the
time frame set forth in the Initial Resolution Period and/or the Resolution
Extension Period (if applicable), provided that such time frame shall never be
less than 90 days from the date that the related Mortgage Loan Seller was first
notified of its obligation to repurchase pursuant to Section 4 of the related
Mortgage Loan Purchase and Sale Agreement and Section 2.03; (e) in connection
with a Loss of Value Payment by the related Mortgage Loan Seller; and (f) with
respect to any Non-Serviced Companion Loan, a purchase or repurchase of such
Non-Serviced Companion Loan under a Non-Serviced Pooling and Servicing
Agreement.
"Liquidation Fee Rate": With respect to each Specially Serviced Loan
or REO Property as to which a Liquidation Fee is payable, 1.0% (100 basis
points).
"Liquidation Proceeds": All cash amounts (other than Insurance
Proceeds, Condemnation Proceeds and REO Revenues) received by the Master
Servicer or the Special Servicer in connection with: (i) the liquidation of a
Mortgaged Property or other collateral constituting security for a Defaulted
Serviced Loan through trustee's sale, foreclosure sale, REO Disposition or
otherwise, exclusive of any portion thereof required to be released to the
related Mortgagor in accordance with applicable law and/or the terms and
conditions of the related loan documents; (ii) the realization upon any
deficiency judgment obtained against a Mortgagor; (iii) the purchase of a
Defaulted Serviced Loan by any Controlling Class Certificateholder(s) pursuant
to Section 3.18(c), by the Special Servicer pursuant to Section 3.18(c) or with
respect to a Non-Serviced Companion Loan, the purchase thereof by the parties
specified in the related Non-Serviced Pooling and Servicing Agreement pursuant
to a similar provision, by any A/B Whole Loan Purchase Option Holder pursuant to
the related Intercreditor Agreement, or by the related Mezzanine Loan Holder
pursuant to the related Mezzanine Intercreditor Agreement; (iv) the repurchase
of a Mortgage Loan by the related Mortgage Loan Seller pursuant to the related
Mortgage Loan Purchase and Sale Agreement or with respect to a Non-Serviced
Companion Loan, the repurchase thereof, in the case of any Non-Serviced Mortgage
Loan, by the seller thereof pursuant to the Non-Serviced Pooling and Servicing
Agreement or related mortgage loan purchase agreement; (v) the substitution of
one or more Replacement Mortgage Loans for a Deleted Mortgage Loan by the
related Mortgage Loan Seller pursuant to the related Mortgage Loan Purchase and
Sale Agreement (such cash amounts being any Substitution Shortfall Amounts);
(vi) the purchase of a Mortgage Loan or REO Property by the Master Servicer, the
Special Servicer or any Controlling Class Certificateholder(s) pursuant to
Section 9.01 or with respect to a Non-Serviced Companion Loan, the purchase
thereof by the parties specified in the related Non-Serviced Pooling and
Servicing Agreement pursuant to a similar provision; or (vii) except for
purposes of Section 3.11(c), the transfer of any Loss of Value Payments from the
Loss of Value Reserve Fund to the Certificate Account.
"Litigation Control": As defined in Section 3.32.
"Loan": Any Mortgage Loan, Whole Loan or Companion Loan.
"Loan Group": Together, Loan Group 1 and Loan Group 2.
"Loan Group 1": Collectively, all of the Mortgage Loans that are
Group 1 Mortgage Loans and any successor REO Loans with respect thereto.
"Loan Group 1 Available Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Available Distribution Amount
attributable to Loan Group 1.
"Loan Group 1 Principal Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Principal Distribution Amount
attributable to Loan Group 1.
"Loan Group 2": Collectively, all of the Mortgage Loans that are
Group 2 Mortgage Loans and any successor REO Loans with respect thereto.
"Loan Group 2 Available Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Available Distribution Amount
attributable to Loan Group 2.
"Loan Group 2 Principal Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Principal Distribution Amount
attributable to Loan Group 2.
"Lock-Box Agreement": With respect to any Loan, the lock-box
agreement, if any, between the related originator and the Borrower, pursuant to
which an account created pursuant to the related loan documents to receive
revenues therefrom, if any, may have been established.
"Lock-Box Account": With respect to any Lock-Box Agreement, the
account(s) established pursuant to the terms of such agreement.
"Loss of Value Payment": As defined in Section 2.03(i).
"Loss of Value Reserve Fund": The "outside reserve fund" (within the
meaning of Treasury Regulations Section 1.860G-2(h)) designated as such pursuant
to Section 2.12. The Loss of Value Reserve Fund will be part of the Trust, but
not part of any Grantor Trust or REMIC I or REMIC II.
"MAI": Member of the Appraisal Institute.
"Majority Certificateholder": With respect to any specified Class or
Classes of Certificates, as of any date of determination, any Holder or
particular group of Holders of Certificates of such Class or Classes, as the
case may be, entitled to a majority of the Voting Rights allocated to such Class
or Classes, as the case may be.
"Master Servicer": Bank of America, National Association, its
successor in interest or any successor master servicer appointed as herein
provided.
"Master Servicer Remittance Amount": With respect to any Master
Servicer Remittance Date, an amount equal to (a) all amounts on deposit in the
Certificate Account as of the commencement of business on such Master Servicer
Remittance Date, net of (b) any portion of the amounts described in clause (a)
of this definition that represents one or more of the following: (i) collected
Monthly Payments that are due on a Due Date following the end of the related
Collection Period, (ii) any unscheduled payments of principal (including,
without limitation, Principal Prepayments) and interest, Liquidation Proceeds
and Insurance Proceeds received after the end of the related Collection Period,
(iii) any Prepayment Premiums received after the end of the related Collection
Period, (iv) any amounts payable or reimbursable to any Person from the
Certificate Account pursuant to any of clauses (ii) through (xvii) of Section
3.05(a), (v) any Excess Liquidation Proceeds, (vi) any amounts deposited into
the Certificate Account in error, and (vii) with respect to each Mortgage Loan
that accrues interest on an Actual/360 Basis and any Distribution Date relating
to the one-month period preceding the Distribution Date in each February (and in
any January of a year that is not a leap year), an amount equal to the related
Withheld Amount pursuant to Section 4.05; provided that, with respect to the
Master Servicer Remittance Date that occurs in the same calendar month as the
Final Distribution Date, the Master Servicer Remittance Amount will be
calculated without regard to clauses (b)(i), (b)(ii) and (b)(iii) of this
definition; provided, further, in no event shall any amounts be included in the
Master Servicer Remittance Amount to the extent that such amounts are payable to
any Companion Loan Holder pursuant to the related Intercreditor Agreement.
"Master Servicer Remittance Date": The Business Day immediately
preceding each Distribution Date.
"Master Servicing Fee": With respect to each Loan and REO Loan, the
fee payable to the Master Servicer pursuant to Section 3.11(a) and from which
any Primary Servicing Fee is payable (and, (i) in the case of the Beacon Seattle
& DC Portfolio Mortgage Loan, without duplication of the "Master Servicing Fee"
payable in respect of the Beacon Seattle & DC Portfolio Whole Loan under the
Beacon Seattle & DC Portfolio Pooling Agreement and (ii) in the case of the 000
Xxxxxxxxx Xxxxxx Pari Passu Mortgage Loan, without duplication of the "Master
Servicing Fee" payable in respect of the 000 Xxxxxxxxx Xxxxxx Pari Passu Whole
Loan under the 000 Xxxxxxxxx Xxxxxx Pooling Agreement).
"Master Servicing Fee Rate": With respect to (a) each Mortgage Loan
and any related REO Loan, the Administrative Fee Rate specified for each such
Mortgage Loan on the Mortgage Loan Schedule minus the Trustee Fee Rate and (b)
with respect to any Companion Loan and any related REO Loan, the Master
Servicing Fee Rate shall be the same as the Master Servicing Fee Rate for the
related Mortgage Loan.
"Material Breach": A Breach that materially and adversely affects
the interests of the Certificateholders, or any of them, with respect to the
affected Mortgage Loan, including but not limited to a material and adverse
effect on any of the distributions payable with respect to any of the
Certificates or on the value of such Certificates or such Mortgage Loan.
"Material Document Defect": A Document Defect that materially and
adversely affects the interests of the Certificateholders, or any of them, with
respect to the affected Mortgage Loan, including but not limited to a material
and adverse effect on any of the distributions payable with respect to any of
the Certificates or on the value of such Certificates or such Mortgage Loan.
"MERS": Mortgage Electronic Registration Systems, Inc.
"Mezzanine Intercreditor Agreement": With respect to each applicable
Mezzanine Loan, the related intercreditor agreement and, with respect to any
Mortgage Loan with permitted future mezzanine indebtedness, the mezzanine
intercreditor agreement related to such future mezzanine loan.
"Mezzanine Loan": Collectively, the mezzanine loan related to Loan
No. 51006, the mezzanine loan related to Loan No. 3405209, the mezzanine loan
related to Loan No. 3404620, the mezzanine loan related to Loan No. 3402813, the
mezzanine loan related to Loan No. 49150, the mezzanine loan related to Loan No.
3405636 and the mezzanine loan related to Loan No. 3404189 (each such Mortgage
Loan name and number as set forth in the Mortgage Loan Schedule) and, with
respect to any Mortgage Loan with permitted future mezzanine indebtedness, such
future mezzanine loan.
"Mezzanine Loan Holder": With respect to each Mezzanine Loan, the
related holder of such Mezzanine Loan and, with respect to any Mortgage Loan
with permitted future mezzanine indebtedness, the mezzanine lender under such
future mezzanine loan.
"Modified Serviced Loan": Any Serviced Loan as to which any
Servicing Transfer Event has occurred and that has been modified by the Special
Servicer pursuant to Section 3.20 in a manner that:
(a) affects the amount or timing of any payment of principal or
interest due thereon (other than, or in addition to, bringing current
Monthly Payments with respect to such Serviced Loan);
(b) except as expressly contemplated by the related loan documents,
results in a release of the lien of the Mortgage on any material portion
of the related Mortgaged Property without a corresponding Principal
Prepayment in an amount or the delivery of substitute real property
collateral with a fair market value (as is) that is not less than the fair
market value (as is), as determined by an Appraisal delivered to the
Special Servicer (at the expense of the related Mortgagor and upon which
the Special Servicer may conclusively rely), of the property to be
released; or
(c) in the good faith and reasonable judgment of the Special
Servicer, otherwise materially impairs the security for such Serviced Loan
or reduces the likelihood of timely payment of amounts due thereon.
"Monthly Payment": With respect to any Loan, for any Due Date as of
which such Loan is outstanding, the scheduled monthly payment (or, in the case
of an ARD Loan after its Anticipated Repayment Date, the minimum required
monthly payment, exclusive of any Excess Interest and any excess cash flow) of
principal and/or interest on such Loan, including, without limitation, a Balloon
Payment, that is actually payable by the related Mortgagor from time to time
under the terms of the related Mortgage Note (as such terms may be changed or
modified in connection with a bankruptcy or similar proceeding involving the
related Mortgagor or a modification, waiver or amendment of such Loan granted or
agreed to by the Master Servicer or Special Servicer pursuant to Section 3.20
and applicable law); provided that the Monthly Payment due in respect of any ARD
Loan after its Anticipated Repayment Date shall not include Excess Interest.
"Moody's": Xxxxx'x Investors Service, Inc. or its successor in
interest. If neither Moody's nor any successor remains in existence, "Moody's"
shall be deemed to refer to such other nationally recognized statistical rating
agency or other comparable Person designated by the Depositor, notice of which
designation shall be given to the Trustee, the Master Servicer, the Special
Servicer and the REMIC Administrator, and specific ratings of Moody's herein
referenced shall be deemed to refer to the equivalent ratings of the party so
designated.
"Mortgage": With respect to any Loan, separately and collectively,
as the context may require, each mortgage, deed of trust and/or other similar
document or instrument (together with any rider, addendum or amendment thereto)
securing the related Mortgage Note and creating a lien on the related Mortgaged
Property.
"Mortgage File": With respect to any Mortgage Loan, subject to
Sections 1.04 and 2.01, collectively the following documents:
(i) (A) the original executed Mortgage Note, endorsed (either
on the face thereof or pursuant to a separate allonge) "Pay to the
order of Xxxxx Fargo Bank, N.A., as Trustee, in trust for the
registered holders of Banc of America Commercial Mortgage Inc.
Commercial Mortgage Pass-Through Certificates, Series 2007-2,
without recourse" or in blank, and further showing a complete,
unbroken chain of endorsement from the originator (if such
originator is other than the related Mortgage Loan Seller); or
alternatively, if the original executed Mortgage Note has been lost,
a lost note affidavit and indemnity from the related Mortgage Loan
Seller with a copy of such Mortgage Note, and (B) in the case of
each Companion Loan, a copy of the related executed Mortgage Note;
(ii) an original or a copy of the Mortgage and any intervening
assignments that precede the assignment referred to in clause (iv)
of this definition, in each case (unless the particular item has not
been returned from the applicable recording office) with evidence of
recording indicated thereon; provided that with respect to the
Puerto Rico Mortgage Loans, to create the security interest, the
closing counsel for such Mortgage Loan will notarize and retain
copies of the constitution of mortgage, the security agreement, the
mortgage pledge and the Mortgage Note;
(iii) an original or a copy of any related Assignment of
Leases (if such item is a document separate from the Mortgage) and
of any intervening assignments thereof that precede the assignment
referred to in clause (v) of this definition, in each case (unless
the particular item has not been returned from the applicable
recording office) with evidence of recording indicated thereon;
(iv) subject to the provisos at the end of this paragraph, (A)
for all Mortgage Loans, an original executed assignment of the
Mortgage in favor of Xxxxx Fargo Bank, N.A., as Trustee, in trust
for the registered holders of Banc of America Commercial Mortgage
Inc. Commercial Mortgage Pass-Through Certificates, Series 2007-2 or
in blank, in recordable form (except for any missing recording
information with respect to such Mortgage) and (B) in the case of
each Whole Loan, an original executed assignment of the Mortgage
also to Xxxxx Fargo Bank, N.A. in its capacity as "lead lender" on
behalf of the holders of the related Companion Loan Holder, provided
that, if the related Mortgage has not been returned from the
applicable public recording office, such assignment of Mortgage may
exclude the information to be provided by the recording office, and
provided, further, if the related Mortgage has been recorded in the
name of Mortgage Electronic Registration Systems, Inc. ("MERS") or
its designee, no assignment of Mortgage in favor of the Trustee will
be required to be prepared or delivered and instead, the Master
Servicer shall take all actions as are necessary to cause the
Trustee to be shown as, and the Trustee shall take all actions
necessary to confirm that it is shown as, the owner of the related
Mortgage on the records of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained
by MERS;
(v) an original executed assignment of any related Assignment
of Leases (if such item is a document separate from the Mortgage),
in favor of Xxxxx Fargo Bank, N.A., as Trustee, in trust for the
registered holders of Banc of America Commercial Mortgage Inc.
Commercial Mortgage Pass-Through Certificates, Series 2007-2 or in
blank, in recordable form (except for any missing recording
information with respect to such Assignment of Leases) and in the
case of each Whole Loan, also to Xxxxx Fargo Bank, N.A. in its
capacity as "lead lender" or on behalf of the Companion Loan Holder,
provided that if the related Mortgage has been recorded in the name
of MERS or its designee, no assignment of Assignment of Leases in
favor of the Trustee will be required to be prepared or delivered
and instead, the Master Servicer shall take all actions as are
necessary to cause the Trustee to be shown as, and the Trustee shall
take all actions necessary to confirm that it is shown as, the owner
of the related Mortgage on the records of MERS for purposes of the
system of recording transfers of beneficial ownership of mortgages
maintained by MERS;
(vi) originals or copies of any written assumption,
modification, written assurance and substitution agreements in those
instances where the terms or provisions of the Mortgage or Mortgage
Note have been modified or the Mortgage Loan has been assumed, in
each case (unless the particular item has not been returned from the
applicable recording office) with evidence of recording indicated
thereon if the instrument being modified or assumed is a recordable
document;
(vii) the original or a copy of the policy of lender's title
insurance or, if such policy has not yet been issued, a "marked-up"
pro forma title policy or commitment for title insurance marked as
binding and countersigned by the issuer or its authorized agent
either on its face or by an acknowledged closing instruction or
escrow letter;
(viii) filed copies of any prior UCC Financing Statements in
favor of the originator of such Mortgage Loan or in favor of any
assignee prior to the Trustee (but only to the extent the related
Mortgage Loan Seller had possession of such UCC Financing Statements
prior to the Closing Date) and, in connection with such UCC
Financing Statements, an original UCC-2 or UCC-3, as appropriate, in
favor of Xxxxx Fargo Bank, N.A., as Trustee, in trust for the
registered holders of Banc of America Commercial Mortgage Inc.
Commercial Mortgage Pass-Through Certificates, Series 2007-2 or in
blank, in a form that is complete and suitable for filing or
recording, and sufficient to assign to the Trustee the security
interest held by the originator of the Mortgage Loan or its
assignee; provided that if the related Mortgage Loan has been
recorded in the name of MERS or its designee, no UCC Financing
Statement in favor of the Trustee will be required to be prepared or
delivered and instead, the Master Servicer shall take all actions as
are necessary to cause the Trustee, on behalf of the
Certificateholders, to be shown as, and the Trustee shall take all
actions necessary to confirm that it is shown as, the owner of the
related Mortgage on the records of MERS for purposes of the system
of recording transfers of beneficial ownership of mortgages
maintained by MERS; provided, further, with respect to the Puerto
Rico Mortgage Loans, to create the security interest, the closing
counsel for such Mortgage Loan will notarize and retain copies of
the constitution of mortgage, the security agreement, the mortgage
pledge and the Mortgage Note;
(ix) the original or a copy of any environmental indemnity
agreement and/or environmental report relating solely to such
Mortgage Loan;
(x) the original or a copy of any power of attorney, guaranty,
loan agreement, Ground Lease and/or Ground Lease estoppels relating
to such Mortgage Loan;
(xi) any original documents (including any security
agreement(s)) relating to, evidencing or constituting Additional
Collateral and, if applicable, the originals or copies of any
intervening assignments thereof;
(xii) the original or a copy of any intercreditor agreement,
co-lender agreement, agreement among noteholders or similar
agreement relating to such Mortgage Loan and a copy of any Letter of
Credit;
(xiii) with respect to any Companion Loan, a copy of the
related Note;
(xiv) with respect to hospitality properties, a copy of the
franchise agreement, an original copy of the comfort letter and any
transfer documents with respect to such comfort letter, if any;
(xv) a copy of the Beacon Seattle & DC Portfolio Pooling
Agreement and the 000 Xxxxxxxxx Xxxxxx Pooling Agreement; and
(xvi) a list attached to each Mortgage File indicating the
documents to be included in each such Mortgage File (the "Mortgage
Loan Checklist") which list may be modified within 180 days by the
related Mortgage Loan Seller after the Closing Date to correct any
errors in accordance with Section 2.02(e).
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or by a Custodian on its behalf such term shall
not be deemed to include such documents and instruments required to be included
therein unless they are actually so received; provided, further, however, on the
Closing Date, with respect to item (iv), the Depositor has delivered to the
Trustee a copy of such assignment of Mortgage in blank and has caused the Master
Servicer to retain the completed assignment of Mortgage for recording as
described below, unless such Mortgage has been recorded in the name of MERS or
its designee.
With respect to the Beacon Seattle & DC Portfolio Mortgage Loan, the
preceding document delivery requirements shall be deemed to be met by the
delivery by the related Mortgage Loan Seller of copies of the documents
specified above (other than the Beacon Seattle & DC Portfolio Note A-4 (and all
intervening endorsements), with respect to which the originals shall be
required), including a copy of the related Mortgage.
With respect to the 000 Xxxxxxxxx Xxxxxx Pari Passu Mortgage Loan,
the preceding document delivery requirements shall be deemed to be met by the
delivery by the related Mortgage Loan Seller of copies of the documents
specified above (other than the 000 Xxxxxxxxx Xxxxxx Pari Passu Note A-2 (and
all intervening endorsements), with respect to which the originals shall be
required), including a copy of the related Mortgage.
"Mortgage Loan": Each of the mortgage loans transferred and assigned
to the Trustee pursuant to Section 2.01 and from time to time held in the Trust
Fund. As used herein, the term "Mortgage Loan" includes the related Mortgage
Note, Mortgage and other security documents contained in the related Mortgage
File.
"Mortgage Loan Checklist": As defined in the definition of Mortgage
File.
"Mortgage Loan Purchase and Sale Agreement": Each of the mortgage
loan purchase and sale agreements, dated as of June 1, 2007: (A) between Bank of
America and the Depositor and (B) between BSCMI and the Depositor.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred on
the Closing Date to the Trustee as part of the Trust Fund, which list is
attached hereto as Schedule I and may be amended from time to time in accordance
with Section 2.03(f). The Mortgage Loan Schedule shall set forth, among other
things, the following information with respect to each Mortgage Loan:
(i) the loan number and control number;
(ii) the street address or addresses (including city, state
and zip code) of the related Mortgaged Property.
(iii) (a) the Mortgage Rate in effect as of the Cut-off Date
and (b) whether the Mortgage Loan accrues interest on the basis of
the actual number of days elapsed in the relevant month of accrual
and a 360-day year (an "Actual/360 Basis") or on the basis of a
360-day year consisting of twelve 30-day months (a "30/360 Basis");
(iv) the original principal balance;
(v) the Cut-off Date Balance;
(vi) the (A) remaining term to stated maturity and (B) Stated
Maturity Date;
(vii) the Due Date;
(viii) the amount of the Monthly Payment due on the first Due
Date following the Cut-off Date (other than with respect to Loans
that are interest only for some (but not all) of their respective
loan terms then in such case the amortizing debt service);
(ix) the Administrative Fee Rate (inclusive of the Master
Servicer Fee Rate, the Trustee Fee Rate and the Primary Servicing
Fee Rate);
(x) the Primary Servicing Fee Rate;
(xi) the Master Servicing Fee Rate;
(xii) whether the Mortgagor's interest in the related
Mortgaged Property is or includes a Ground Lease;
(xiii) whether the Mortgage Loan is a Cross-Collateralized
Mortgage Loan and, if so, a reference to the other Mortgage Loans
that are cross collateralized with such Mortgage Loan;
(xiv) the original amortization term;
(xv) whether the Mortgage Loan is an ARD Loan;
(xvi) the applicable grace period; and
(xvii) the Loan Group to which such Mortgage Loan belongs.
The Mortgage Loan Schedule shall also set forth the aggregate
Cut-off Date Balance for all of the Mortgage Loans. Such list may be in the form
of more than one list, collectively setting forth all of the information
required.
"Mortgage Loan Sellers": Bank of America and BSCMI.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Loan, together with any rider, addendum or
amendment thereto.
"Mortgage Pool": Collectively, all of the Mortgage Loans and any
successor REO Loans. The Mortgage Pool does not include any Companion Loan or
any successor REO Loan.
"Mortgage Rate": With respect to (i) any Loan on or prior to its
Stated Maturity Date, the annualized rate at which interest is scheduled (in the
absence of a default) to accrue on such Loan from time to time in accordance
with the terms of the related Mortgage Note (as such may be modified at any time
following the Closing Date) and applicable law, (ii) any Loan after its Stated
Maturity Date, the annualized rate described in clause (i) of this definition
determined without regard to the passage of such Stated Maturity Date, and (iii)
any REO Loan, the annualized rate described in clause (i) or (ii) of this
definition, as applicable, determined as if the related Loan had remained
outstanding.
"Mortgaged Property": Individually and collectively, as the context
may require, each real property (together with all improvements and fixtures
thereon) subject to the lien of a Mortgage and constituting collateral for a
Loan. With respect to any Cross-Collateralized Mortgage Loan, as the context may
require, "Mortgaged Property" may mean, collectively, all the Mortgaged
Properties securing such Cross-Collateralized Mortgage Loan.
"Mortgagor": The obligor or obligors on a Mortgage Note, including
without limitation, any Person that has acquired the related Mortgaged Property
and assumed the obligations of the original obligor under the Mortgage Note.
"Net Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments during the related Collection Period, exceeds (b) the
amount of the Compensating Interest Payment remitted by the Master Servicer
pursuant to Section 3.19(e) on the Master Servicer Remittance Date related to
such Distribution Date.
"Net Assumption Application Fee": As defined in Section 3.08.
"Net Assumption Fee": As defined in Section 3.08.
"Net Cash Flow": With respect to any Mortgaged Property, the total
operating revenues derived from such Mortgaged Property, minus the total fixed
and variable operating expenses, capital expenditures such as reserves, tenant
improvements and leasing commissions, incurred in respect of such Mortgaged
Property (subject to adjustments for, among other things, (i) non cash items
such as depreciation and amortization, and (ii) debt service on loans secured by
the Mortgaged Property).
"Net Default Charges": With respect to any Serviced Loan or REO
Loan, the Default Charges referred to in clause sixth of Section 3.27(a) and
clause second of Section 3.27(c), which are payable to the Master Servicer as
Additional Master Servicing Compensation or the Special Servicer as Additional
Special Servicing Compensation.
"Net Investment Earnings": With respect to any Investment Account
for any Collection Period, the amount, if any, by which the aggregate of all
interest and other income realized during such Collection Period on funds held
in such Investment Account, exceeds the aggregate of all losses and investment
costs, if any, incurred during such Collection Period in connection with the
investment of such funds in accordance with Section 3.06.
"Net Investment Loss": With respect to any Investment Account for
any Collection Period, the amount by which the aggregate of all losses and
investment costs, if any, incurred during such Collection Period in connection
with the investment of funds held in such Investment Account in accordance with
Section 3.06, exceeds the aggregate of all interest and other income realized
during such Collection Period on such funds, but Net Investment Loss shall not
include any loss with respect to such investment that is incurred solely as a
result of the insolvency of the federally or state chartered depository
institution or trust company that holds such Investment Account so long as such
depository institution or trust company satisfied the qualifications set forth
in the definition of Eligible Account at the time such investment was made and
so long as such depository institution or trust company is not an Affiliate of
either the Master Servicer or the Special Servicer.
"Net Liquidation Proceeds": The excess, if any, of all Liquidation
Proceeds received with respect to any Specially Serviced Loan or REO Property,
over the amount of all Liquidation Expenses incurred with respect thereto and
all related Servicing Advances reimbursable therefrom.
"Net Modification Application Fee": As defined in Section 3.20(i).
"Net Modification Fee": As defined in Section 3.20(i).
"Net Mortgage Rate": With respect to any Loan or any related REO
Loan, as of any date of determination, a rate per annum equal to the related
Mortgage Rate then in effect minus the related Administrative Fee Rate, if
applicable. For purposes of calculating the Pass-Through Rate for each Class of
Certificates (other than the Class V Certificates and the REMIC Residual
Certificates) from time to time, the Net Mortgage Rate for any Mortgage Loan
will be calculated without regard to any modification, waiver or amendment of
the terms of such Mortgage Loan subsequent to the Closing Date.
"Net Operating Income": With respect to any Mortgaged Property, the
total operating revenues derived from such Mortgaged Property for a specified
period, minus the total fixed and variable operating expenses incurred in
respect of such Mortgaged Property (subject to adjustments for, and excluding,
among other things, (i) non-cash items such as depreciation and amortization,
(ii) capital expenditures (inclusive of replacement reserves) and (iii) debt
service on loans secured by the Mortgaged Property).
"New Lease": Any lease of REO Property (other than any REO Property
related to a Non-Serviced Loan) entered into at the direction of the Special
Servicer on behalf of the Trust (and, in the case of a Whole Loan, the related
Companion Loan Holder, to the extent of its interest), including any lease
renewed, modified or extended on behalf of the Trust, if the Trust has the right
to renegotiate the terms of such lease.
"NMWHFIT": A "Non-Mortgage Widely Held Fixed Investment Trust" as
that term is defined in Treasury Regulations Section 1.671-5(b)(12) or successor
provisions.
"Non-Investment Grade Sequential Pay Certificates": The Class L,
Class M, Class N, Class O, Class P, Class Q and Class S Certificates.
"Non-Partitioned Loans": Each Mortgage Loan, other than any Mortgage
Loan related to a Whole Loan.
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class XW, Class A-2FL, Class A-JFL, Class E, Class F, Class
G, Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class P, Class
Q, Class S, Class V, Class R-I and Class R-II Certificate.
"Non-Serviced Companion Loan": Each Beacon Seattle & DC Portfolio
Companion Loan and the 000 Xxxxxxxxx Xxxxxx Pari Passu Companion Loan.
"Non-Serviced Loan": Any Non-Serviced Companion Loan, Non-Serviced
Mortgage Loan or Non-Serviced Whole Loan.
"Non-Serviced Loan Master Servicer": With respect to the
Non-Serviced Mortgage Loan, the "master servicer" designated under the related
Non-Serviced Loan Pooling and Servicing Agreement.
"Non-Serviced Loan Pooling and Servicing Agreement": Each of the
Beacon Seattle & DC Portfolio Pooling Agreement and the 000 Xxxxxxxxx Xxxxxx
Pooling Agreement.
"Non-Serviced Loan Special Servicer": With respect to any
Non-Serviced Mortgage Loan, the "special servicer" designated under the related
Non-Serviced Loan Pooling and Servicing Agreement.
"Non-Serviced Loan Trustee": With respect to any Non-Serviced
Mortgage Loan, the "trustee" designated under the related Non-Serviced Loan
Pooling and Servicing Agreement.
"Non-Serviced Mortgage Loan": The Beacon Seattle & DC Portfolio
Mortgage Loan and the 000 Xxxxxxxxx Xxxxxx Pari Passu Mortgage Loan.
"Non-Serviced Mortgage Loan Primary Servicing Fee": With respect to
the Non-Serviced Mortgage Loan, the servicer fee applicable to such Non-Serviced
Mortgage Loan as provided in the related Non-Serviced Loan Pooling and Servicing
Agreement.
"Non-Serviced Mortgage Loan Primary Servicing Fee Rate": The rate at
which the Non-Serviced Mortgage Loan Primary Servicing Fee accrues, as set forth
in the Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
"Non-Serviced Whole Loan": The Beacon Seattle & DC Portfolio Whole
Loan and the 000 Xxxxxxxxx Xxxxxx Pari Passu Whole Loan.
"Non-U.S. Person": Any person other than a U.S. Person.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance": As evidenced by the Officer's
Certificate and supporting documentation contemplated by Section 4.03(c), any
P&I Advance previously made or to be made in respect of any Mortgage Loan or any
REO Loan that, as determined by the Master Servicer, the Special Servicer or, if
applicable, the Trustee, in its reasonable, good faith judgment, based on at
least an Appraisal conducted within the 12 months preceding any such
determination, will not be ultimately recoverable (together with Advance
Interest accrued thereon) from Default Charges, Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds or any other recovery on or in respect of such
Mortgage Loan; provided, however, the Special Servicer may, at its option, in
consultation with the Directing Certificateholder, make a determination in
accordance with the Servicing Standard, that any P&I Advance previously made or
proposed to be made is a Nonrecoverable P&I Advance and shall deliver to the
Master Servicer and the Trustee notice of such determination and any such
determination shall be conclusive and binding on the Master Servicer and the
Trustee.
"Nonrecoverable Servicing Advance": (a) Any Servicing Advance made
or proposed to be made in respect of a Serviced Loan or REO Property that, as
determined by the Master Servicer or, if applicable, the Special Servicer or the
Trustee in its reasonable and good faith judgment, will not be recoverable
(together with Advance Interest accrued thereon), or that in fact was not
ultimately recovered, from Default Charges, Insurance Proceeds, Liquidation
Proceeds or any other recovery on or in respect of such Serviced Loan or REO
Property (without giving effect to potential recoveries on deficiency judgments
or recoveries from guarantors); provided, however, the Special Servicer may, at
its option, make a determination in accordance with the Servicing Standard and
Section 3.11(h), that any Servicing Advance previously made or proposed to be
made is a Nonrecoverable Servicing Advance and shall deliver to the Master
Servicer and the Trustee notice of such determination and any such determination
shall be conclusive and binding on the Master Servicer and the Trustee; and (b)
any Beacon Seattle & DC Portfolio Nonrecoverable Servicing Advance or any 000
Xxxxxxxxx Xxxxxx Nonrecoverable Servicing Advance (including interest thereon
calculated in accordance with the respective Non-Serviced Loan Pooling and
Servicing Agreement). The determination as to the recoverability of any
servicing advance previously made or proposed to be made in respect of the
Beacon Seattle & DC Portfolio Mortgage Loan shall be made by the Beacon Seattle
& DC Portfolio Master Servicer, Beacon Seattle & DC Portfolio Special Servicer
or the Beacon Seattle & DC Portfolio Trustee, as the case may be, pursuant to
the Beacon Seattle & DC Portfolio Pooling Agreement. Any such determination made
by the Beacon Seattle & DC Portfolio Master Servicer, Beacon Seattle & DC
Portfolio Special Servicer or the Beacon Seattle & DC Portfolio Trustee, shall
be conclusive and binding on the Certificateholders. The determination as to the
recoverability of any servicing advance previously made or proposed to be made
in respect of the 000 Xxxxxxxxx Xxxxxx Pari Passu Mortgage Loan shall be made by
the 000 Xxxxxxxxx Xxxxxx Master Servicer, the 000 Xxxxxxxxx Xxxxxx Special
Servicer or the 000 Xxxxxxxxx Xxxxxx Trustee, as the case may be, pursuant to
the 000 Xxxxxxxxx Xxxxxx Pooling Agreement. Any such determination made by the
000 Xxxxxxxxx Xxxxxx Master Servicer, the 000 Xxxxxxxxx Xxxxxx Special Servicer
or the 000 Xxxxxxxxx Xxxxxx Trustee, shall be conclusive and binding on the
Certificateholders.
"Note B": The Parkway Chevrolet-Tomball Note B.
"Note B Holder": Any holder of a Note B related to an A/B Whole
Loan.
"Officer's Certificate": A certificate signed by a Servicing Officer
of the Master Servicer, the Special Servicer or any Additional Servicer, a
Responsible Officer of the Trustee or any authorized officer of a Mortgage Loan
Seller, as the case may be.
"One Park Avenue Controlling Holder": The holder determined in
accordance with Section 2(h) of the One Park Avenue Intercreditor Agreement. The
initial One Park Avenue Controlling Holder shall be set forth on Schedule VII
hereto.
"One Park Avenue Intercreditor Agreement": The Agreement Among Note
Holders dated as of June 1, 2007 by and between the One Park Avenue Note A-1
Holder and the One Park Avenue Note A-2 Holder relating to the relative rights
of such holders, as the same may be further amended from time to time in
accordance with the terms thereof.
"One Park Avenue Note A-1": With respect to the One Park Avenue Pari
Passu Mortgage Loan, the related Mortgage Note that is included in the Trust
Fund.
"One Park Avenue Note A-1 Holder": The holder of the One Park Avenue
Note A-1, initially Bank of America, National Association.
"One Park Avenue Note A-2": The Mortgage Note related to One Park
Avenue Pari Passu Whole Loan that is not included in the Trust, which is pari
passu in right of payment to the One Park Avenue Note A-1 as set forth in the
One Park Avenue Intercreditor Agreement.
"One Park Avenue Note A-2 Holder": The holder of the One Park Avenue
Note A-2, initially Bank of America, National Association.
"One Park Avenue Pari Passu Companion Loan": The loan evidenced by
the One Park Avenue Note A-2.
"One Park Avenue Pari Passu Mortgage Loan": The Mortgage Loan
identified as Loan No. 3405209 in the Mortgage Loan Schedule, which, together
with the One Park Avenue Note A-1, is secured by a Mortgage on the related
Mortgaged Properties.
"One Park Avenue Pari Passu Whole Loan": The One Park Avenue Pari
Passu Mortgage Loan together with the One Park Avenue Pari Passu Companion Loan.
References herein to One Park Avenue Pari Passu Whole Loan shall be construed to
refer to the aggregate indebtedness under the One Park Avenue Note A-1 and the
One Park Avenue Note A-2.
"Operating Advisor": Means the Beacon Seattle & DC Portfolio
Operating Advisor.
"Opinion of Counsel": A written opinion of counsel (who must, in
connection with any opinion rendered pursuant hereto with respect to tax matters
or a resignation under Section 6.04, be Independent counsel, but who otherwise
may be salaried counsel for the Depositor, the Trustee, the REMIC Administrator,
the Master Servicer or the Special Servicer), which written opinion is
acceptable and delivered to the addressee(s).
"Option Holder": As defined in Section 3.18(c).
"Option Period": As defined in Section 3.18(c).
"Option Price": As defined in Section 3.18(c).
"Other Servicer": Any servicer under a Non-Serviced Pooling and
Servicing Agreement or other agreement related thereto.
"OTS": The Office of Thrift Supervision or any successor thereto.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"P&I Advance": As to any Serviced Loan or REO Loan, any advance made
by the Master Servicer or the Trustee pursuant to Section 4.03.
"Pari Passu Companion Loan": Each of the 000 Xxxxxxxxx Xxxxxx Pari
Passu Companion Loan and the One Park Avenue Pari Passu Companion Loan, as
applicable.
"Pari Passu Mortgage Loan": Each of the 000 Xxxxxxxxx Xxxxxx Pari
Passu Mortgage Loan and the One Park Avenue Pari Passu Mortgage Loan, as
applicable.
"Pari Passu Whole Loan": Either of the 575 Lexington Pari Passu
Avenue Whole Loan or the One Park Avenue Pari Passu Whole Loan, as applicable.
"Parkway Chevrolet-Tomball A/B Companion Loan": The loan evidenced
by the Parkway Chevrolet-Tomball Note B, which is not an asset of the Trust
Fund.
"Parkway Chevrolet-Tomball A/B Mortgage Loan": The Mortgage Loan
identified as Loan No. 48225 in the Mortgage Loan Schedule, which, together with
the Parkway Chevrolet-Tomball Note A, is secured by a Mortgage on the Parkway
Chevrolet-Tomball Mortgaged Property.
"Parkway Chevrolet-Tomball A/B Whole Loan": The Parkway
Chevrolet-Tomball A/B Mortgage Loan together with the Parkway Chevrolet-Tomball
A/B Companion Loan. References herein to the Parkway Chevrolet-Tomball A/B Whole
Loan shall be construed to refer to the aggregate indebtedness under the Parkway
Chevrolet-Tomball Note A and the Parkway Chevrolet-Tomball Note B.
"Parkway Chevrolet-Tomball Control Appraisal Period": The meaning
assigned to "Control Appraisal Period" in the Parkway Chevrolet-Tomball
Intercreditor Agreement.
"Parkway Chevrolet-Tomball Controlling Holder": The meaning assigned
to "Controlling Holder" in the Parkway Chevrolet-Tomball Intercreditor
Agreement. The initial Parkway Chevrolet-Tomball Controlling Holder shall be set
forth on Schedule VII hereto.
"Parkway Chevrolet-Tomball Intercreditor Agreement": The Agreement
Among Note Holders dated as of June 1, 2007 and between the Parkway
Chevrolet-Tomball Note A Holder and the Parkway Chevrolet-Tomball Note B Holder
relating to the relative rights of such holders, as the same may be further
amended from time to time in accordance with the terms thereof.
"Parkway Chevrolet-Tomball Mortgaged Property": The property that
secures the Parkway Chevrolet-Tomball A/B Whole Loan.
"Parkway Chevrolet-Tomball Note A": With respect to the Parkway
Chevrolet-Tomball A/B Mortgage Loan, the related Mortgage Note that is included
in the Trust Fund.
"Parkway Chevrolet-Tomball Note A Holder": The holder of the Parkway
Chevrolet-Tomball Note A, initially Bear Xxxxxxx Commercial Mortgage, Inc.
"Parkway Chevrolet-Tomball Note B": The Mortgage Note related to the
Parkway Chevrolet-Tomball A/B Companion Loan that is not included in the Trust,
which is subordinated in right of payment to the Parkway Chevrolet-Tomball Note
A to the extent set forth in the Parkway Chevrolet-Tomball Intercreditor
Agreement.
"Parkway Chevrolet-Tomball Note B Holder": The holder of the Parkway
Chevrolet-Tomball Note B, initially Bear Xxxxxxx Commercial Mortgage, Inc.
"Pass-Through Rate": With respect to any Class of Sequential Pay
Certificates, Class A-2FL Certificates, Class A-2FL Regular Interest, Class
A-JFL Certificates and Class A-JFL Regular Interest, the rate per annum
specified as such in respect of such Class of Certificates in the Preliminary
Statement hereto. With respect to the Class XW Certificates, for any
Distribution Date, the Class XW Pass-Through Rate.
"Past Grace Period Serviced Loan": With respect to any Master
Servicer Remittance Date, any Serviced Loan having any Monthly Payment remaining
unpaid past its Due Date and past any applicable grace period for such Monthly
Payment as of the Determination Date in the same calendar month.
"Payment Priority": With respect to any Class of Certificates (other
than the Class V Certificates), the priority of the Holders thereof in respect
of the Holders of the other Classes of Certificates to receive distributions out
of the Available Distribution Amount for any Distribution Date. The Payment
Priority of the respective Classes of Certificates shall be, in descending
order, as follows: first, the respective Classes of Senior Certificates (pro
rata between the Class A-2 Certificates and Class A-2FL Regular Interest);
second, the Class A-M Certificates; third, the Class A-J Certificates and Class
A-JFL Regular Interest, pro rata; fourth the Class B Certificates; fifth, the
Class C Certificates; sixth, the Class D Certificates; seventh, the Class E
Certificates; eighth, the Class F Certificates; ninth, the Class G Certificates;
tenth, the Class H Certificates; eleventh, the Class J Certificates; twelfth,
the Class K Certificates; thirteenth, the Class L Certificates; fourteenth, the
Class M Certificates; fifteenth, the Class N Certificates; sixteenth, the Class
O Certificates; seventeenth, the Class P Certificates; eighteenth, the Class Q
Certificates; nineteenth, the Class S Certificates; and last, the respective
Classes of REMIC Residual Certificates.
"Percentage Interest": With respect to any Regular Certificate, the
portion of the relevant Class evidenced by such Certificate, expressed as a
percentage, the numerator of which is the Certificate Principal Balance or
Certificate Notional Amount, as the case may be, of such Certificate as of the
Closing Date, as specified on the face thereof, and the denominator of which is
the Initial Class Principal Balance or Initial Class Notional Amount, as the
case may be, of the relevant Class. With respect to a Class V Certificate or a
REMIC Residual Certificate, the percentage interest in distributions to be made
with respect to the relevant Class, as stated on the face of such Certificate.
"Performance Certification": As defined in Section 11.06.
"Performing Serviced Loan": As of any date of determination, any
Serviced Loan as to which no Servicing Transfer Event then exists.
"Performing Party": As defined in Section 11.12.
"Permitted Investments": Any one or more of the following
obligations:
(a) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or any
agency or instrumentality thereof, provided such obligations are backed by
the full faith and credit of the United States;
(b) repurchase obligations with respect to any security described in
clause (a) of this definition, provided that the long-term unsecured debt
obligations of the party agreeing to repurchase such obligations are rated
"AA+" by Fitch and "AAA" by S&P;
(c) federal funds, uncertificated certificates of deposit, time
deposits and bankers' acceptances (having original maturities of not more
than 365 days) of any bank or trust company organized under the laws of
the United States or any state, provided that the short-term unsecured
debt obligations of such bank or trust company are rated no less than
"F-1+" by Fitch and "A-1+" by S&P;
(d) commercial paper (having original maturities of not more than
365 days) of any corporation incorporated under the laws of the United
States or any state thereof rated no less than "F-1+" by Fitch and "A-1+"
by S&P;
(e) units of money market funds that maintain a constant asset value
and that are rated in the highest applicable rating category by each of
Fitch (or if not rated by Fitch a confirmation from Fitch that such money
market fund is acceptable) and S&P (i.e., "AAAm" or "AAAmG");
(f) the Xxxxx Fargo Prime Investment Money Market Fund so long as it
is rated by each Rating Agency in its highest money market fund ratings
category (or, if not rated by Fitch or S&P, otherwise acceptable to Fitch
or S&P, as applicable, as confirmed in writing that such investment would
not, in and of itself, result in a downgrade, qualification or withdrawal
of the then current ratings assigned to the Certificates); and
(g) any other obligation or security that would not result in the
downgrade, qualification (if applicable) or withdrawal of the rating then
assigned by any of the Rating Agencies to any Class of Certificates or
Companion Loan Securities, evidence of which shall be confirmed in writing
by each Rating Agency to the Trustee;
provided that no investment described hereunder shall evidence either the right
to receive (a) only interest with respect to such investment or (b) a yield to
maturity greater than 120% of the yield to maturity at par of the underlying
obligations; and provided, further, no investment described hereunder may be
purchased at a price greater than par if such investment may be prepaid or
called at a price less than its purchase price prior to stated maturity; and
provided, further, each investment described hereunder shall, by its terms, have
a predetermined fixed amount of principal due at maturity (that cannot vary or
change) and either a fixed interest rate or variable interest rate tied to a
single interest rate index plus a single fixed spread; and provided, further,
each investment described hereunder shall be a "cash flow investment", as
defined in the REMIC Provisions; and provided, further, no investment described
hereunder shall have a maturity in excess of one year; and provided, further, no
investment described hereunder shall be liquidated prior to its maturity date;
and provided, further, no investment described hereunder may have an "r"
highlighter or other comparable qualifier attached to its rating.
"Permitted Mezzanine Loan Holder": With respect to the Mezzanine
Loans, any "qualified transferee" with respect to which each Rating Agency has
confirmed in writing that the holding of the related Mezzanine Loan by such
Person would not cause a qualification, downgrade or withdrawal of any of such
Rating Agency's then-current ratings on the Certificates or Companion Loan
Securities or that otherwise meets the qualifications set forth in the related
Mezzanine Intercreditor Agreement to be a "qualified transferee".
"Permitted Transferee": Any Transferee of a REMIC Residual
Certificate other than any of a Plan or a Person acting on behalf of or using
the assets of a Plan, a Disqualified Organization, a Disqualified Non-U.S.
Person, an entity treated as a U.S. partnership for federal income tax purposes
if any of its direct or indirect beneficial owners (other than through a U.S.
corporation) is (or is permitted to be under the related partnership agreement)
a Disqualified Non-U.S. Person or a U.S. Person with respect to whom income on a
REMIC Residual Certificate is attributable to a foreign permanent establishment
or fixed base, within the meaning of an applicable income tax treaty, of such
Person or any other U.S. Person or any nominee, agent or middleman of any of the
above.
"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company or government or any agency or political subdivision thereof.
"Phase I Environmental Assessment": A "Phase I assessment" or, in
the case of any Serviced Loan having an initial principal balance under
$1,000,000, a transaction screen, as described in, and meeting the criteria of
the American Society of Testing Materials Standard Sections 1527-99 or any
successor thereto published by the American Society of Testing Materials.
"Plan": As defined in Section 5.02(c).
"Pool REO Account": A segregated custodial account or accounts
created and maintained by the Special Servicer pursuant to Section 3.16(b) on
behalf of the Trustee in trust for the Certificateholders, which shall be
entitled "LNR Partners, Inc., as Special Servicer, for the benefit of Xxxxx
Fargo Bank, N.A., as Trustee, in trust for registered Holders of Banc of America
Commercial Mortgage Inc., Commercial Mortgage Pass-Through Certificates, Series
2007-2, REO Account". Any such account or accounts shall be an Eligible Account.
"Post CAP Whole Loan": Any A/B Whole Loan following the occurrence
and during the continuance of a related Control Appraisal Period.
"Prepayment Assumption": The assumption that no Mortgage Loan (other
than an ARD Loan) is prepaid prior to its Stated Maturity Date and that no ARD
Loan is prepaid prior to, but each is paid in its entirety on, its Anticipated
Repayment Date, such assumption to be used for determining the accrual of
original issue discount, market discount and premium, if any, on the Mortgage
Loans, the REMIC I Regular Interests, the REMIC II Regular Certificates and the
Class A-2FL and Class A-JFL Regular Interests for federal income tax purposes.
"Prepayment Interest Excess": With respect to any Serviced Loan that
was subject to a Principal Prepayment in full or in part made on or prior to the
Determination Date in any calendar month but after such Serviced Loan's Due
Date, any payment of interest (net of related Master Servicing Fees and Excess
Interest and exclusive of Prepayment Premiums) actually collected from the
related Mortgagor from and after such Due Date.
"Prepayment Interest Shortfall": With respect to any Serviced Loan
that was subject to a Principal Prepayment in full or in part made after the
Determination Date in any calendar month, the amount of uncollected interest
(determined without regard to any Prepayment Premium that may have been
collected and exclusive of, in the case of an ARD Loan after its Anticipated
Repayment Date, Excess Interest) that would have accrued at a per annum rate
equal to the sum of the Net Mortgage Rate for such Serviced Loan plus the
Trustee Fee Rate, on the amount of such Principal Prepayment during the period
commencing on the date as of which such Principal Prepayment was applied to such
Serviced Loan and ending on the last day of such calendar month, inclusive.
"Prepayment Premium": Any premium, penalty or fee paid or payable,
as the context requires, by a Mortgagor in connection with a Principal
Prepayment on, or other early collection of principal of, a Loan or any
successor REO Loan.
"Primary Collateral": The Mortgaged Property directly securing a
Cross-Collateralized Mortgage Loan excluding, however, any Mortgaged Property as
to which the related lien may only be foreclosed upon solely because of the
cross-collateralization of such Mortgage Loans.
"Primary Servicing Fee": With respect to each Mortgage Loan that is
subject to a Sub-Servicing Agreement as of the Closing Date, the monthly fee
payable to the Sub-Servicer by the Master Servicer from the Master Servicing
Fee, which monthly fee accrues at the Primary Servicing Fee Rate.
"Primary Servicing Fee Rate": With respect to each Mortgage Loan
that is subject to a Sub-Servicing Agreement as of the Closing Date, the rate
per annum specified as such in the Mortgage Loan Schedule.
"Primary Servicing Office": With respect to the Master Servicer, the
office thereof primarily responsible for performing its respective duties under
this Agreement, initially located in Charlotte, North Carolina, and, with
respect to the Special Servicer, the office thereof primarily responsible for
performing its respective duties under this Agreement, initially located in
Florida.
"Principal Distribution Amount": With respect to any Distribution
Date and in respect of any Mortgage Loan, the aggregate of the Current Principal
Distribution Amount for such Distribution Date and, if such Distribution Date is
subsequent to the initial Distribution Date, the excess, if any, of the
Principal Distribution Amount for the preceding Distribution Date, over the
aggregate distributions of principal made on the Sequential Pay Certificates and
the Class A-2FL and Class A-JFL Regular Interests on the preceding Distribution
Date; provided that the Principal Distribution Amount for any Distribution Date
shall be reduced by the amount of any reimbursements of Nonrecoverable Advances
or Workout-Delayed Reimbursement Amounts plus interest on such Nonrecoverable
Advances or Workout-Delayed Reimbursement Amounts that are paid or reimbursed
from principal collections on the Mortgage Loans in a period during which such
principal collections would have otherwise been included in the Principal
Distribution Amount for such Distribution Date (provided that if any of the
amounts that were reimbursed from principal collections on the Mortgage Loans
are subsequently recovered on the related Mortgage Loan, such recovery will
increase the Principal Distribution Amount for the Distribution Date related to
the period in which such recovery occurs).
"Principal Prepayment": Any voluntary payment of principal made by
the Mortgagor on a Loan that is received in advance of its scheduled Due Date
and that is not accompanied by an amount of interest (without regard to any
Prepayment Premium that may have been collected) representing scheduled interest
due on any date or dates in any month or months subsequent to the month of
prepayment.
"Prohibited Actions": As defined in Section 3.21(f).
"Prospectus Supplement": That certain prospectus supplement dated
May 24, 2007, relating to the Class A-1, Class A-2, Class A-3, Class A-AB, Class
A-4, Class A-1A, Class A-M, Class A-J, Class B, Class C and Class D
Certificates, that is a supplement to the Base Prospectus.
"Puerto Rico Mortgage Loan": Either of the Mortgage Loans identified
as Loan Nos. 49754 and 49148 in the Mortgage Loan Schedule attached hereto as
Schedule I.
"Puerto Rico Mortgage Loans": The Mortgage Loans identified as Loan
Nos. 49754 and 49148 in the Mortgage Loan Schedule attached hereto as Schedule
I.
"Purchase Option": As defined in Section 3.18(c).
"Purchase Option Notice": As defined in Section 3.18(d).
"Purchase Price": With respect to any Mortgage Loan, a price equal
to the unpaid principal balance of the Mortgage Loan as of the date of purchase,
together with (a) all accrued and unpaid interest (excluding, in the case of an
ARD Loan after its Anticipated Repayment Date, Excess Interest) on the Mortgage
Loan at the related Mortgage Rate up to but not including the Due Date in the
Collection Period of purchase, (b) all related unreimbursed Master Servicing
Fees, Special Servicing Fees, Trustee Fees and Servicing Advances that are
unreimbursed from related collections on such Mortgage Loan (including, in the
case of a Non-Serviced Mortgage Loan, the pro rata portion, based on the related
Stated Principal Balance, of any servicing advance made pursuant to the related
Non-Serviced Loan Pooling and Servicing Agreement that is allocable to such
Non-Serviced Mortgage Loan and unpaid fees payable to the Non-Serviced Loan
Master Servicer or the Non-Serviced Loan Special Servicer), (c) all accrued and
unpaid Advance Interest in respect of related Advances, (d) any Additional Trust
Fund Expenses in respect of such Mortgage Loan (including any Additional Trust
Fund Expenses previously reimbursed or paid by the Trust Fund but not so
reimbursed by the related Mortgagor or other party or from Insurance Proceeds or
Condemnation Proceeds or otherwise), (e) Liquidation Fees (if any) payable in
connection with a purchase of a Mortgage Loan and (f) any cost, fees and
expenses of enforcement (including attorneys fees) of a repurchase obligation
pursuant to Section 2.03(h). With respect to any REO Property, a price equal to
the unpaid principal balance of the related REO Loan as of the date of purchase,
together with (a) all accrued and unpaid interest (excluding, in the case of an
ARD Loan after its Anticipated Repayment Date, Excess Interest) on such REO Loan
at the related Mortgage Rate to but not including the Due Date in the Collection
Period of purchase, (b) all related Master Servicing Fees, Special Servicing
Fees, Trustee Fees and Servicing Advances that are unreimbursed from related
collections on such REO Property, (c) all accrued and unpaid Advance Interest in
respect of related Advances, (d) any Additional Trust Fund Expenses in respect
of such REO Property (including any Additional Trust Fund Expenses previously
reimbursed or paid by the Trust Fund but not so reimbursed by the related
Mortgagor or other party or from Insurance Proceeds or Condemnation Proceeds or
otherwise), (e) Liquidation Fees (if any) payable in connection with a purchase
of a Mortgage Loan and (f) any cost, fees and expenses of enforcement (including
attorneys fees) of a repurchase obligation pursuant to Section 2.03. The
Purchase Price of any Mortgage Loan or REO Property is intended to include,
without limitation, principal and interest previously advanced with respect
thereto and not previously reimbursed.
"Qualified Appraiser": In connection with the appraisal of any Loan,
Mortgaged Property or REO Property, an Independent MAI-designated appraiser with
at least five years of experience in respect of the relevant geographic location
and property type.
"Qualified Bidder": As defined in Section 7.01(d).
"Qualified Institutional Buyer": As defined in Section 5.02(b).
"Qualified Insurer": An insurance company or security or bonding
company qualified to write the related Insurance Policy in the relevant
jurisdiction.
"Qualifying Substitute Mortgage Loan": In connection with the
replacement of a Defective Mortgage Loan as contemplated by Section 2.03, any
other mortgage loan that, on the date of substitution, (i) has a principal
balance, after deduction of the principal portion of any unpaid Monthly Payment
due on or before the date of substitution, not in excess of the Stated Principal
Balance of the Defective Mortgage Loan; (ii) is accruing interest at a fixed
rate of interest at least equal to that of the Defective Mortgage Loan; (iii)
has the same Due Date as, and a grace period for delinquent Monthly Payments
that is no longer than, the Due Date and grace period, respectively, of the
Defective Mortgage Loan; (iv) is accruing interest on the same basis as the
Defective Mortgage Loan (for example, on the basis of a 360-day year consisting
of twelve 30-day months); (v) has a remaining term to stated maturity not
greater than, and not more than two years less than, that of the Defective
Mortgage Loan and, in any event, has a maturity date not later than two years
prior to the Rated Final Distribution Date; (vi) has a then current
loan-to-value ratio not higher than, and a then current debt service coverage
ratio not lower than, the loan-to-value ratio and debt service coverage ratio,
respectively, of the Defective Mortgage Loan as of the Closing Date; (vii) has
comparable prepayment restrictions to those of the Defective Mortgage Loan,
(viii) will comply (except in a manner that would not be adverse to the
interests of the Certificateholders (as a collective whole) in or with respect
to such mortgage loan), as of the date of substitution, with all of the
representations relating to the Defective Mortgage Loan set forth in or made
pursuant to the related Mortgage Loan Purchase and Sale Agreement; (ix) has a
Phase I Environmental Assessment and a property condition report relating to the
related Mortgaged Property in its Servicing File, which Phase I Environmental
Assessment will evidence that there is no material adverse environmental
condition or circumstance at the related Mortgaged Property for which further
remedial action may be required under applicable law, and which property
condition report will evidence that the related Mortgaged Property is in good
condition with no material damage or deferred maintenance; and (x) constitutes a
"qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the
Code; provided, however, if more than one mortgage loan is to be substituted for
any Defective Mortgage Loan, then all such proposed Replacement Mortgage Loans
shall, in the aggregate, satisfy the requirement specified in clause (i) of this
definition and each such proposed Replacement Mortgage Loan shall, individually,
satisfy each of the requirements specified in clauses (ii) through (x) of this
definition; and provided, further, no mortgage loan shall be substituted for a
Defective Mortgage Loan unless (x) such prospective Replacement Mortgage Loan
shall be acceptable to the Directing Certificateholder (or, if there is no
Directing Certificateholder then serving, to the Holders of Certificates
representing a majority of the Voting Rights allocated to the Controlling
Class), in its (or their) sole discretion, and (y) each Rating Agency shall have
confirmed in writing to the Trustee that such substitution will not in and of
itself result in an Adverse Rating Event with respect to any Class of Rated
Certificates (such written confirmation to be obtained by, and at the expense
of, the related Mortgage Loan Seller effecting the substitution).
"Rated Certificate": Any of the Certificates to which a rating has
been assigned by either Rating Agency at the request of the Depositor.
"Rated Final Distribution Date": As to each Class of Certificates,
the Distribution Date in April 2049.
"Rating Agency": Each of Fitch and S&P or their successors in
interest, and, if applicable, any rating agency rating the Companion Loan
Securities.
"Rating Agency Trigger Event": The reduction of either the Class
A-2FL Swap Counterparty's long-term ratings below "A-" by Fitch or "A" by S&P
for the Class A-2FL Swap Contract or the reduction of either the Class A-JFL
Swap Counterparty's long-term ratings below "A-" by Fitch or "A" by S&P for the
Class A-JFL Swap Contract
"Realized Loss": With respect to each Defaulted Serviced Loan as to
which a Final Recovery Determination has been made, or with respect to any
related REO Loan as to which a Final Recovery Determination has been made as to
the related REO Property, an amount (not less than zero) equal to (i) the unpaid
principal balance of such Serviced Loan or REO Loan, as the case may be, as of
the Due Date related to the Collection Period in which the Final Recovery
Determination was made, plus (ii) all accrued but unpaid interest on such
Serviced Loan or REO Loan, as the case may be, at the related Mortgage Rate to
but not including the Due Date related to the Collection Period in which the
Final Recovery Determination was made, plus (iii) any related unreimbursed
Servicing Advances as of the commencement of the Collection Period in which the
Final Recovery Determination was made, together with any new related Servicing
Advances made during such Collection Period, minus (iv) all payments and
proceeds, if any, received in respect of such Collection Period related to the
Serviced Loan or REO Loan, as the case may be, during the Collection Period in
which such Final Recovery Determination was made (net of any related Liquidation
Expenses paid therefrom).
With respect to any Serviced Loan as to which any portion of the
outstanding principal or accrued interest owed thereunder was forgiven in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, waiver or amendment of such Serviced Loan granted
or agreed to by the Master Servicer or Special Servicer pursuant to Section
3.20, the amount of such principal or past due interest (other than any Default
Interest) so forgiven.
With respect to any Serviced Loan as to which the Mortgage Rate
thereon has been permanently reduced and not recaptured for any period in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, waiver or amendment of such Serviced Loan granted
or agreed to by the Master Servicer or Special Servicer pursuant to Section
3.20, the amount of the consequent reduction, if any, in the interest portion of
each successive Monthly Payment due thereon. Each such Realized Loss shall be
deemed to have been incurred on the Due Date for each affected Monthly Payment.
With respect to (i) any Pari Passu Whole Loan, Realized Losses shall
be deemed allocated pro rata between the Mortgage Loan and the related Companion
Loan in accordance with the related Intercreditor Agreement and the portion
allocable to the Mortgage Loan shall be further allocated to the Certificates as
provided in this Agreement, and (ii) any A/B Whole Loan, Realized Losses shall
be deemed allocated first to the Companion Loan and then to the related Mortgage
Loan and the portion allocable to the Mortgage Loan shall be further allocated
to the Certificates as provided in this Agreement.
"Record Date": With respect to each Class of Certificates, for any
Distribution Date, the last Business Day of the calendar month immediately
preceding the month in which such Distribution Date occurs.
"Registered Certificates": Any Certificate that has been registered
under the Securities Act.
"Regular Certificate": Any REMIC II Regular Certificate, Class A-2FL
Certificate or Class A-JFL Certificate.
"Regulation AB": Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from
time to time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506 - 1,631 (Jan. 7, 2005))
or by the staff of the Commission, or as may be provided by the Commission or
its staff from time to time.
"Regulation AB Companion Loan Securitization": As defined in Section
11.16(a).
"Regulation S": Regulation S under the Securities Act.
"Regulation S Certificate": A certificate in the form of Exhibit N
attached hereto.
"Regulation S Global Certificate": A global certificate representing
interests in a Class of Certificates as provided in Section 5.03(g), initially
sold in offshore transactions in reliance on Regulation S in fully registered
form without interest coupons.
"Reimbursement Rate": The rate per annum applicable to the accrual
of Advance Interest, which rate per annum shall be equal to the "prime rate" as
published in the "Money Rates" section of The Wall Street Journal, as such
"prime rate" may change from time to time. If The Wall Street Journal ceases to
publish such "prime rate", then the Trustee, in its sole discretion, shall
select an equivalent publication that publishes such "prime rate"; and if such
"prime rate" is no longer generally published or is limited, regulated or
administered by a governmental or quasi governmental body, then the Trustee
shall select a comparable interest rate index. In either case, such selection
shall be made by the Trustee in its sole discretion and the Trustee shall notify
the Master Servicer and the Special Servicer in writing of its selection.
"Release Date": The 40th day after the later of (i) the commencement
of the offering of the Certificates and (ii) the Closing Date.
"Relevant Servicing Criteria": The Servicing Criteria applicable to
the various parties, as set forth on Schedule VIII attached hereto. For the
avoidance of doubt, multiple parties can have responsibility for the same
Relevant Servicing Criteria. With respect to a Servicing Function Participant
engaged by the Trustee, the Master Servicer or the Special Servicer, the term
"Relevant Servicing Criteria" may refer to a portion of the Relevant Servicing
Criteria applicable to the Master Servicer, the Special Servicer or the Trustee.
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code.
"REMIC Administrator": Xxxxx Fargo Bank, N.A., its successor in
interest, or any successor REMIC administrator appointed as herein provided.
"REMIC I": A segregated pool of assets subject hereto and to be
administered hereunder, with respect to which a REMIC election is to be made,
consisting of: (i) the Mortgage Loans (other than Excess Interest) as from time
to time are subject to this Agreement and all payments under and proceeds of
such Mortgage Loans received or receivable after the Cut-off Date (other than
payments of principal, interest and other amounts due and payable on such
Mortgage Loans on or before the Cut-off Date), together with all documents,
Escrow Payments and Reserve Funds delivered or caused to be delivered hereunder
by the related Mortgage Loan Seller with respect to such Mortgage Loans, (ii)
any REO Property acquired in respect of a Mortgage Loan and all payments and
proceeds of such REO Property; (iii) the rights of the Depositor under Sections
1, 2, 3, 4, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 and 21 of the Mortgage Loan
Purchase and Sale Agreements, and (iv) such amounts on or with respect to
clauses (i) or (ii) of this definition, as from time to time are deposited into
the Distribution Account, the Certificate Account, the Interest Reserve Account
and the REO Account (if established) and the Excess Liquidation Proceeds Account
(if established), and in the case of a Whole Loan, to the extent of the Trust's
interest in each of the foregoing.
"REMIC I Distribution Account": The segregated account or accounts
created and maintained as a separate trust account or accounts by the Trustee
pursuant to Section 3.04, which shall be entitled "Xxxxx Fargo Bank, N.A., as
Trustee, in trust for Holders of Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-2, REMIC I
Distribution Account" and which account shall be an Eligible Account and a
sub-account of the Distribution Account.
"REMIC I Principal Balance": The principal amount of any REMIC I
Regular Interest outstanding as of any date of determination. As of the Closing
Date, the REMIC I Principal Balance of each REMIC I Regular Interest shall equal
the initial REMIC I Principal Balance as set forth in the Preliminary Statement
hereto. On each Distribution Date, the REMIC I Principal Balance of each REMIC I
Regular Interest shall be permanently reduced by all distributions of principal
deemed to have been made in respect of such REMIC I Regular Interest on such
Distribution Date pursuant to Section 4.01(a), and shall be further permanently
reduced on such Distribution Date by all Realized Losses and Additional Trust
Fund Expenses deemed to have been allocated thereto on such Distribution Date
pursuant to Section 4.04(b).
"REMIC I Regular Interest": Any of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
"regular interest" in REMIC I, as described in the Preliminary Statement hereto.
"REMIC I Remittance Rate": With respect to any REMIC I Regular
Interest for any Distribution Date, the Weighted Average Adjusted Net Mortgage
Rate.
"REMIC II": A segregated pool of assets subject hereto and to be
administered hereunder, and consisting of all of the REMIC I Regular Interests
and amounts distributed thereon as from time to time are held in the REMIC II
Distribution Account.
"REMIC II Certificate": Any Certificate, other than a Class A-2FL,
Class A-JFL, Class R-I Certificate or Class V Certificate.
"REMIC II Distribution Account": The segregated account or accounts
created and maintained as a separate trust account or accounts by the Trustee
pursuant to Section 3.04, which shall be entitled "Xxxxx Fargo Bank, N.A., as
Trustee, in trust for Holders of Banc of America Commercial Mortgage Inc.
Commercial Mortgage Pass-Through Certificates, Series 2007-2, REMIC II
Distribution Account" and which account shall be an Eligible Account and a
sub-account of the Distribution Account.
"REMIC II Regular Certificate": Any REMIC II Certificate, other than
a Class R-II Certificate.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and temporary and final Treasury regulations (or proposed
regulations that would apply by reason of their proposed effective date to the
extent not inconsistent with temporary or final regulations) and any rulings
promulgated thereunder, as the foregoing may be in effect from time to time.
"Rents from Real Property": With respect to any REO Property (other
than any REO Property to the extent related to a Non-Serviced Mortgage Loan),
gross income of the character described in Section 856(d) of the Code, which
income, subject to the terms and conditions of that Section of the Code in its
present form, does not include:
(a) except as provided in Section 856(d)(4) or (6) of the Code, any
amount received or accrued, directly or indirectly, with respect to such
REO Property, if the determination of such amount depends in whole or in
part on the income or profits derived by any Person from such property
(unless such amount is a fixed percentage or percentages of receipts or
sales and otherwise constitutes Rents from Real Property);
(b) any amount received or accrued, directly or indirectly, from any
Person if the Trust Fund owns directly or indirectly (including by
attribution) a ten percent or greater interest in such Person determined
in accordance with Sections 856(d)(2)(B) and (d)(5) of the Code;
(c) any amount received or accrued, directly or indirectly, with
respect to such REO Property if any Person Directly Operates such REO
Property;
(d) any amount charged for services that are not customarily
furnished in connection with the rental of property to tenants in
buildings of a similar class in the same geographic market as such REO
Property within the meaning of Treasury Regulations Section 1.856-4(b)(1)
(whether or not such charges are separately stated); and
(e) rent attributable to personal property unless such personal
property is leased under, or in connection with, the lease of such REO
Property and, for any taxable year of the Trust Fund, such rent is no
greater than 15 percent of the total rent received or accrued under, or in
connection with, the lease.
"REO Account": The Pool REO Account and/or a Whole Loan REO Account,
as applicable.
"REO Acquisition": The acquisition of an REO Property for federal
income tax purposes pursuant to Treasury Regulations Section 1.856-6.
"REO Disposition": The sale or other disposition of the REO Property
pursuant to Section 3.18.
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The mortgage loan(s) deemed for purposes hereof to be
outstanding with respect to each REO Property acquired in respect of any
Serviced Loan or, with respect to Beacon Seattle & DC Portfolio Passu Mortgage
Loan, which is serviced under the Beacon Seattle & DC Portfolio Pooling
Agreement, in respect of the Trust's interest in the "REO Property" acquired
under the Beacon Seattle & DC Portfolio Pooling Agreement relating to the Beacon
Seattle & DC Portfolio Whole Loan or, with respect to 000 Xxxxxxxxx Xxxxxx Pari
Passu Mortgage Loan, which is serviced under the 000 Xxxxxxxxx Xxxxxx Pooling
Agreement, in respect of the Trust's interest in the "REO Property" acquired
under the 000 Xxxxxxxxx Xxxxxx Pooling Agreement relating to the 000 Xxxxxxxxx
Xxxxxx Whole Loan. Each REO Loan shall be deemed to have an initial unpaid
principal balance and Stated Principal Balance equal to the unpaid principal
balance and Stated Principal Balance, respectively, of the predecessor Loan as
of the date of the related REO Acquisition. In addition, all Monthly Payments
(other than any Balloon Payment), Assumed Monthly Payments (in the case of a
Balloon Loan delinquent in respect of its Balloon Payment) and other amounts due
and owing, or deemed to be due and owing, in respect of the predecessor Serviced
Loan as of the date of the related REO Acquisition, shall be deemed to continue
to be due and owing in respect of an REO Loan. In addition, Nonrecoverable
Advances (including interest on such Nonrecoverable Advances) and
Workout-Delayed Reimbursement Amounts with respect to such REO Loan that were
reimbursed from collections on the Serviced Loans and resulted in principal
distributed to the Certificateholders being reduced as a result of the first
proviso of the definition of "Principal Distribution Amount", shall be deemed
outstanding until recovered or until a Final Recovery Determination is made. All
amounts payable or reimbursable to the Master Servicer, the Special Servicer
and/or the Trustee in respect of the related Serviced Loan as of the date of the
related REO Acquisition, including, without limitation, any unpaid Servicing
Fees and any unreimbursed Advances, together with any Advance Interest accrued
and payable to the Master Servicer, the Special Servicer and/or the Trustee in
respect of such Advances, shall continue to be payable or reimbursable to the
Master Servicer, the Special Servicer and/or the Trustee as the case may be, in
respect of an REO Loan. If the Loans comprising One Park Avenue Pari Passu Whole
Loan become REO Loans, amounts received by the Trust with respect to such REO
Loans shall be applied to amounts due and owing in respect of such REO Loans as
provided in Section 1(b) of the One Park Avenue Intercreditor Agreement. If the
Loans comprising Parkway Chevrolet-Tomball A/B Whole Loan become REO Loans,
amounts received by the Trust with respect to such REO Loans shall be applied to
amounts due and owing in respect of such REO Loans as provided in Section (4) of
the Parkway Chevrolet-Tomball Intercreditor Agreement. Collections in respect of
each REO Loan (exclusive of the amounts to be applied to the payment of, or to
be reimbursed to the Master Servicer or the Special Servicer for the payment of,
Servicing Fees, Special Servicing Fees, Additional Master Servicing
Compensation, Additional Special Servicing Compensation, Liquidation Fees, the
costs of operating, managing, selling, leasing and maintaining the related REO
Property) shall be treated: first, as a recovery of Nonrecoverable Advances
(including interest on such Nonrecoverable Advance) and Workout-Delayed
Reimbursed Amounts with respect to such REO Loan, that were reimbursed from
collections on the Serviced Loans and resulted in principal distributed to the
Certificateholders being reduced as a result of the first proviso of the
definition of "Principal Distribution Amount"; second, as a recovery of accrued
and unpaid interest on such REO Loan at the related Mortgage Rate in effect from
time to time to but not including the Due Date in the Collection Period of
receipt; third, as a recovery of principal of such REO Loan to the extent of its
entire unpaid principal balance; fourth, in accordance with the Servicing
Standard of the Master Servicer or the Special Servicer, as applicable, as a
recovery of any other amounts due and owing in respect of such REO Loan; fifth,
as a recovery of any other amounts deemed to be due and owing in respect of the
related REO Loan (other than, in the case of an REO Loan that relates to an ARD
Loan after its Anticipated Repayment Date, accrued and unpaid Excess Interest);
and sixth, in the case of an REO Loan that relates to an ARD Loan after its
Anticipated Repayment Date, as a recovery of any accrued and unpaid Excess
Interest on such REO Loan to but not including the date of receipt by or on
behalf of the Trust, in that order. If either the Beacon Seattle & DC Portfolio
Mortgage Loan or the 000 Xxxxxxxxx Xxxxxx Pari Passu Mortgage Loan becomes an
"REO Loan" as defined under the related Non-Serviced Loan Pooling and Servicing
Agreement, the treatment of the foregoing amounts with respect to such Mortgage
Loan shall be subject to the terms of the related Intercreditor Agreement and
the related Non-Serviced Loan Pooling and Servicing Agreement.
"REO Property": A Mortgaged Property acquired by the Special
Servicer on behalf of the Trustee for the benefit of the Certificateholders,
(and, in the case of the Beacon Seattle & DC Portfolio Mortgage Loan, the
beneficial interest of the Trust Fund in the related Mortgaged Property if it is
acquired by the Beacon Seattle & DC Portfolio Special Servicer, for the benefit
of the Certificateholders and the Beacon Seattle & DC Portfolio Noteholders,
and, in the case of the 000 Xxxxxxxxx Xxxxxx Pari Passu Mortgage Loan, the
beneficial interest of the Trust Fund in the related Mortgaged Property if it is
acquired by the 000 Xxxxxxxxx Xxxxxx Special Servicer, for the benefit of the
Certificateholders and the 000 Xxxxxxxxx Xxxxxx Pari Passu Noteholders) pursuant
to Section 3.09 through foreclosure, acceptance of a deed-in-lieu of foreclosure
or otherwise in accordance with applicable law in connection with the default or
imminent default of a Loan. For the avoidance of doubt, REO Property allocable
to a Companion Loan shall not be an asset of the Trust Fund or REMIC I or REMIC
II.
"REO Revenues": All income, rents, profits and proceeds derived from
the ownership, operation or leasing of any REO Property.
"Replacement Mortgage Loan" Any mortgage loan that is substituted by
the Mortgage Loan Seller for a Defective Mortgage Loan as contemplated by
Section 2.03.
"Reportable Event": As defined in Section 11.07.
"Reporting Servicer": As defined in Section 11.10.
"Request for Release": A request for release signed by a Servicing
Officer of, as applicable, the Master Servicer or Special Servicer in the form
of Exhibit D attached hereto.
"Request for Review": A request for review signed by a Servicing
Officer of, as applicable, the Master Servicer or Special Servicer in the form
of Exhibit H attached hereto.
"Required Appraisal Serviced Loan": As defined in Section 3.19(b).
"Required Claims-Paying Ratings": With respect to any insurance
carrier, claims-paying ability ratings at least equal to the following minimum
ratings assigned to such carrier by at least one of the other following parties
and, in any event, by each Rating Agency that assigned a rating to the
claims-paying ability of such insurance carrier: Fitch ("A" or better), S&P ("A"
or better) and A.M. Best ("A: VIII" or better) or any insurance carrier backed
or guaranteed by an insurer with such required ratings; provided, however, a
rating by A.M. Best shall be disregarded and shall not be applicable as one of
the two required ratings except with respect to a fidelity bond or errors and
omissions insurance maintained by a Sub-Servicer and then only to the extent in
force as of the Closing Date. Notwithstanding the preceding sentence, an
insurance carrier with lower or fewer claims-paying ability ratings shall be
deemed to have the "Required Claims-Paying Ratings" if the applicable Rating
Agency has confirmed in writing that such insurance carrier shall not result, in
and of itself, in a downgrading, withdrawal or qualification (if applicable) of
the then current rating assigned by such Rating Agency to any Class of
Certificates or Companion Loan Securities, unless, with respect to policies
maintained by borrowers, a higher claims-paying ability rating is required under
any of the loan documents.
"Reserve Account": The account or accounts created and maintained
pursuant to Section 3.03(d).
"Reserve Funds": With respect to any Loan, any amounts delivered by
the related Mortgagor (and not previously disbursed) to be held in escrow by or
on behalf of the mortgagee representing reserves for principal and interest
payments, repairs, replacements, capital improvements (including, without
limitation, tenant improvements and leasing commissions), and/or environmental
testing and remediation with respect to the related Mortgaged Property.
"REMIC Residual Certificate": Any Class R-I or Class R-II
Certificate.
"Resolution Extension Period": This term shall mean:
(i) for purposes of remediating a Material Breach with respect
to any Mortgage Loan, the 90-day period following the end of the
applicable Initial Resolution Period;
(ii) for purposes of remediating a Material Document Defect
with respect to any Mortgage Loan that is not a Specially Serviced
Loan at the commencement of, and does not become a Specially
Serviced Loan during, the applicable Initial Resolution Period, the
period commencing at the end of the applicable Initial Resolution
Period and ending on, and including, the earlier of (i) the 90th day
following the end of such Initial Resolution Period and (ii) the
45th day following receipt by the related Mortgage Loan Seller of
written notice from the Master Servicer or the Special Servicer of
the occurrence of any Servicing Transfer Event with respect to such
Mortgage Loan subsequent to the end of such Initial Resolution
Period;
(iii) for purposes of remediating a Material Document Defect
with respect to any Mortgage Loan that is a not a Specially Serviced
Loan as of the commencement of the applicable Initial Resolution
Period, but as to which a Servicing Transfer Event occurs during
such Initial Resolution Period, the period commencing at the end of
the applicable Initial Resolution Period and ending on, and
including, the 90th day following receipt by the related Mortgage
Loan Seller of written notice from the Master Servicer or the
Special Servicer of the occurrence of such Servicing Transfer Event;
and
(iv) for purposes of remediating a Material Document Defect
with respect to any Mortgage Loan that is a Specially Serviced Loan
as of the commencement of the applicable Initial Resolution Period,
zero days; provided, however, if the related Mortgage Loan Seller
did not receive written notice from the Master Servicer or the
Special Servicer of the relevant Servicing Transfer Event as of the
commencement of the applicable Initial Resolution Period, then such
Servicing Transfer Event shall be deemed to have occurred during
such Initial Resolution Period and the immediately preceding clause
(iii) of this definition will be deemed to apply.
In addition, the related Mortgage Loan Seller shall have an
additional 90 days to cure such Material Document Defect or Material Breach,
provided that such Mortgage Loan Seller has commenced and is diligently
proceeding with the cure of such Material Document Defect or Material Breach and
such failure to cure is solely the result of a delay in the return of documents
from the local filing or recording authorities.
"Responsible Officer": When used with respect to the Trustee, any
officer assigned to the Corporate Trust Office, any vice president, any
assistant vice president, any assistant secretary, any assistant treasurer, or
any other officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers to whom a particular
matter is referred by the Trustee because of such officer's knowledge of and
familiarity with the particular subject. When used with respect to any
Certificate Registrar (other than the Trustee), any officer or assistant officer
thereof.
"Restricted Period": The 40-day period prescribed by Regulation S
commencing on the later of (a) the date upon which the Certificates are first
offered to persons other than the managers and any other distributor (as defined
in Regulation S) of the Certificates, and (b) the Closing Date.
"Rule 144A": Rule 144A under the Securities Act.
"S&P": Standard & Poor's Ratings Services, a division of The McGraw
Hill Companies, Inc., or its successor in interest. If neither S&P nor any
successor remains in existence, "S&P" shall be deemed to refer to such other
nationally recognized statistical rating agency or other comparable Person
designated by the Depositor, notice of which designation shall be given to the
Trustee, the Master Servicer, the Special Servicer and the REMIC Administrator
and specific ratings of Standard & Poor's Ratings Services, a division of The
McGraw Hill Companies, Inc. herein referenced shall be deemed to refer to the
equivalent ratings of the party so designated.
"Xxxxxxxx-Xxxxx Act": The Xxxxxxxx-Xxxxx Act of 2002 and the rules
and regulations of the Commission promulgated thereunder (including any
interpretations thereof by the Commission's staff).
"Xxxxxxxx-Xxxxx Certification": As defined in Section 11.05(a)(iv).
"Securities Act": The Securities Act of 1933, as amended, and the
rules and regulations thereunder.
"Security Agreement": With respect to any Loan, any security
agreement, chattel mortgage or similar document or instrument, whether contained
in the related Mortgage or executed separately, creating in favor of the holder
of such Mortgage a security interest in the personal property constituting
security for repayment of such Loan.
"Senior Certificate": Any Class A-1, Class A-2, Class A-3, Class
A-AB, Class A-4, Class A-1A or Class XW Certificate.
"Senior Principal Distribution Cross Over Date": The first
Distribution Date as of which the aggregate Class Principal Balance of the Class
A-1, Class X-0, Xxxxx X-0, Class A-AB, Class A-4 and Class A-1A Certificates and
the Class A-2FL Regular Interest outstanding immediately prior to such
Distribution Date exceeds the sum of (a) the aggregate Stated Principal Balance
of the Mortgage Pool that will be outstanding immediately following such
Distribution Date, plus (b) the lesser of (i) the Principal Distribution Amount
for such Distribution Date and (ii) the portion of the Available Distribution
Amount for such Distribution Date that will remain after the distributions of
interest to be made on the Class X-0, Xxxxx X-0, Class A-3, Class A-AB, Class
A-4 and Class A-1A Certificates and the Class A-2FL Regular Interest on such
Distribution Date have been so made.
"Sequential Pay Certificate": Any Class A (other than the Class
A-2FL and Class A-JFL Certificates), Class B, Class C, Class D, Class E, Class
F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class
P, Class Q or Class S Certificate.
"Serviced Loan": Any Mortgage Loan (other than the Beacon Seattle &
DC Portfolio Mortgage Loan and the 000 Xxxxxxxxx Xxxxxx Pari Passu Mortgage
Loan).
"Serviced Whole Loan": Any Whole Loan (other than the Beacon Seattle
& DC Portfolio Whole Loan and the 000 Xxxxxxxxx Xxxxxx Pari Passu Whole Loan).
"Servicer Reports": Each of the (i) CMSA Delinquent Loan Status
Report, (ii) CMSA REO Status Report, (iii) CMSA Historical Loan Modification and
Corrected Mortgage Loan Report, (iv) CMSA Comparative Financial Status Report,
(v) CMSA Servicer Watch List Report, (vi) CMSA NOI Adjustment Worksheet, (vii)
CMSA Operating Statement Analysis Report, (viii) CMSA Loan Level Reserve-LOC
Report, (ix) CMSA Loan Periodic Update File, (x) CMSA Property File, (xi) CMSA
Financial File and (xii) CMSA Advance Recovery Report.
"Service(s)(ing)": In accordance with Regulation AB, the act of
servicing and administering the Mortgage Loans or any other assets of the Trust
by an entity that meets the definition of "servicer" set forth in Item 1101 of
Regulation AB and is referenced in the disclosure requirements set forth in Item
1108 of Regulation AB. For the avoidance of doubt, any uncapitalized occurrence
of this term shall have the meaning commonly understood by participants in the
commercial mortgage-backed securities market.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03(a).
"Servicing Advances": Subject to Section 3.19(d) and with respect to
any Serviced Loan, all customary, reasonable and necessary "out-of-pocket" costs
and expenses incurred or to be incurred, as the context requires, by the Master
Servicer or, with respect to the Specially Serviced Loans, by the Master
Servicer at the direction of the Special Servicer or by the Special Servicer
(or, if applicable, the Trustee) in connection with the servicing of a Serviced
Loan after a default, delinquency or other unanticipated event, or in connection
with the administration of any REO Property, including, but not limited to, the
cost of (a) compliance with the obligations of the Master Servicer set forth in
Sections 3.03(c) and 3.09, (b) the preservation, insurance, restoration,
protection and management of a Mortgaged Property, (c) obtaining any Liquidation
Proceeds or Insurance Proceeds in respect of any Serviced Loan or REO Property,
(d) any enforcement or judicial proceedings with respect to a Mortgaged
Property, including, without limitation, foreclosures, and (e) the operation,
management, maintenance and liquidation of any REO Property; provided that
notwithstanding anything herein to the contrary, "Servicing Advances" shall not
include allocable overhead of the Master Servicer or the Special Servicer (or
the Trustee, if applicable), such as costs for office space, office equipment,
supplies and related expenses, employee salaries and related expenses and
similar internal costs and expenses, or costs incurred by either such party in
connection with its purchase of any Serviced Loan or REO Property pursuant to
any provision of this Agreement. All Emergency Advances made by the Master
Servicer at the direction of the Special Servicer hereunder shall be considered
"Servicing Advances" for the purposes hereof.
"Servicing Criteria": The criteria set forth in paragraph (d) of
Item 1122 of Regulation AB as such may be amended from time to time.
"Servicing Fees": With respect to each Serviced Loan and REO Loan,
the Master Servicing Fee and the Special Servicing Fee.
"Servicing File": Any documents (other than documents required to be
part of the related Mortgage File), including, without limitation, the related
Phase I Environmental Site Assessment and any related environmental insurance or
endorsement, in the possession of the Master Servicer or the Special Servicer
and relating to the origination and servicing of any Mortgage Loan or the
administration of any REO Property.
"Servicing Function Participant": Any Additional Servicer,
Sub-Servicer, Subcontractor or any other Person, other than the Master Servicer,
the Special Servicer and the Trustee, that is performing activities that address
the Servicing Criteria, unless such Person's activities relate only to 5% or
less of the Mortgage Loans (by Stated Principal Balance).
"Servicing Officer": Any officer or authorized signatory of the
Master Servicer or the Special Servicer or any Additional Servicer involved in,
or responsible for, the administration and servicing of Loans, whose name and
specimen signature appear on a list of such officers and authorized signatories
furnished by such party to the Trustee and the Depositor on the Closing Date, as
such list may be amended from time to time thereafter.
"Servicing Released Bid": As defined in Section 7.01(d).
"Servicing Retained Bid": As defined in Section 7.01(d).
"Servicing Return Date": With respect to any Corrected Serviced
Loan, the date that servicing thereof is returned by the Special Servicer to the
Master Servicer pursuant to Section 3.21(a).
"Servicing Standard": With respect to each of the Master Servicer
and the Special Servicer subject to applicable law and the express terms of the
relevant Loans and in the case of a Whole Loan, the related Intercreditor
Agreement, to service and administer the Serviced Loans and any REO Properties
for which such Person is responsible hereunder: (a) with the same care, skill,
prudence and diligence as is normal and usual in its general mortgage servicing
and REO property management activities on behalf of third parties or on behalf
of itself, whichever is higher, with respect to mortgage loans and REO
properties that are comparable to those for which it is responsible hereunder;
(b) with a view to the timely collection of all scheduled payments of principal
and interest under the Serviced Loans, the full collection of all Prepayment
Premiums that may become payable under the Serviced Loans and, in the case of
the Special Servicer, if a Serviced Loan comes into and continues in default and
if, in the good faith and reasonable judgment of the Special Servicer, no
satisfactory arrangements can be made for the collection of the delinquent
payments (including payments of Prepayment Premiums), the maximization of the
recovery on such Serviced Loan to the Certificateholders, and, in the case of a
Whole Loan, on behalf of the related Companion Loan Holder, as a collective
whole, on a net present value basis; and (c) without regard to: (i) any known
relationship that the Master Servicer (or any Affiliate thereof) or the Special
Servicer (or any Affiliate thereof), as the case may be, may have with the
related Mortgagor or with any other party to this Agreement; (ii) the ownership
of any Certificate or Companion Loan or any interest in any mezzanine loan by
the Master Servicer (or any Affiliate thereof) or the Special Servicer (or any
Affiliate thereof), as the case may be; (iii) the obligation of the Master
Servicer to make Advances, (iv) the obligation of the Special Servicer to make,
or direct the Master Servicer to make, Servicing Advances; (v) the right of the
Master Servicer (or any Affiliate thereof) or the Special Servicer (or any
Affiliate thereof), as the case may be, to receive reimbursement of costs, or
the sufficiency of any compensation payable to it, hereunder or with respect to
any particular transaction; (vi) any ownership, servicing and/or management by
the Master Servicer (or any Affiliate thereof) or the Special Servicer (or any
Affiliate thereof), as the case may be, of any other mortgage loans or real
property; or (vii) any obligation of the Master Servicer, or any Affiliate
thereof, to repurchase or substitute for a Mortgage Loan as a Mortgage Loan
Seller.
"Servicing Transfer Event" shall mean, with respect to any Serviced
Loan, any of the following events:
(a) the related Mortgagor has failed to make when due any Monthly
Payment (including a Balloon Payment) or any other payment required under
the related loan documents, which failure continues, or the Master
Servicer (or the Special Servicer with the consent of the Directing
Certificateholder) determines, in its reasonable, good faith judgment,
will continue, unremedied (i) except in the case of a delinquent Balloon
Payment, for 60 days beyond the date on which the subject payment was due,
and (ii) solely in the case of a delinquent Balloon Payment and if (A) (x)
the related Borrower is actively seeking a refinancing commitment, (y) the
related Borrower continues to make payments in the amount of its Monthly
Payment, and (z) subject to Section 3.21(f), the Directing
Certificateholder consents, for 60 days beyond the related maturity date,
or if (B) (x) the related Mortgagor has delivered to the Master Servicer,
on or before the 60th day after the related maturity date, a refinancing
commitment reasonably acceptable to the Master Servicer (which refinancing
commitment the Master Servicer shall promptly forward to the Special
Servicer and the Special Servicer shall promptly forward to the Directing
Certificateholder), (y) the related Borrower continues to make payments in
the amount of its Monthly Payment, and (z) subject to Section 3.21(f), the
Directing Certificateholder consents, then for such longer period, not to
exceed 120 days beyond the related maturity date, during which the
refinancing would occur; or
(b) the Master Servicer (or the Special Servicer with the consent of
the Directing Certificateholder) has determined, in its reasonable, good
faith judgment, that a default in the making of a Monthly Payment
(including a Balloon Payment) or any other material payment required under
the related loan documents is likely to occur within 30 days and either
(i) the related Mortgagor has requested a material modification of the
payment terms of the Serviced Loan or (ii) such default is likely to
remain unremedied for at least the period contemplated by clause (a) of
this definition; or
(c) the Master Servicer (or the Special Servicer with the consent of
the Directing Certificateholder) has determined, in its reasonable, good
faith judgment, that a default, other than as described in clause (a) or
(b) of this definition, has occurred or is imminent that may materially
impair the value of the related Mortgaged Property as security for the
Loan, which default has continued or is reasonably expected to continue
unremedied for the applicable cure period under the terms of the Serviced
Loan (or, if no cure period is specified, for 60 days); or
(d) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary action against the
related Mortgagor under any present or future U.S. federal or state
bankruptcy, insolvency or similar law (including any similar law of the
Commonwealth of Puerto Rico) or the appointment of a conservator, receiver
or liquidator in any insolvency, readjustment of debt, marshalling of
assets and liabilities or similar proceeding, or for the winding-up or
liquidation of its affairs, shall have been entered against the related
Mortgagor; or
(e) the related Mortgagor shall have consented to the appointment of
a conservator, receiver or liquidator in any insolvency, readjustment of
debt, marshalling of assets and liabilities or similar proceeding of or
relating to such Mortgagor or of or relating to all or substantially all
of its property; or
(f) the related Mortgagor shall have admitted in writing its
inability to pay its debts generally as they become due, filed a petition
to take advantage of any applicable insolvency or reorganization statute,
made an assignment for the benefit of its creditors, or voluntarily
suspended payment of its obligations; or
(g) the Master Servicer shall have received notice of the
commencement of foreclosure or similar proceedings with respect to the
related Mortgaged Property.
Notwithstanding the foregoing, with respect to any Whole Loan, the
related Mortgage Loan and the related Companion Loan shall be deemed to be a
Specially Serviced Loan if any loan within such Whole Loan becomes a Specially
Serviced Loan.
A Servicing Transfer Event with respect to any Serviced Loan shall
cease to exist:
(w) in the case of the circumstances described in clause (a) of this
definition, if and when the related Mortgagor has made three consecutive
full and timely Monthly Payments under the terms of such Loan (as such
terms may be changed or modified in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or by reason of a
modification, waiver or amendment granted or agreed to by the Master
Servicer or the Special Servicer pursuant to Section 3.20);
(x) in the case of the circumstances described in clauses (b), (c)
(solely with respect to an imminent default), (d), (e) and (f) of this
definition, if and when such circumstances cease to exist in the
reasonable, good faith judgment of the Special Servicer;
(y) in the case of the circumstances described in clause (c) of this
definition (other than with respect to an imminent default), if and when
such default is cured in the reasonable, good faith judgment of the
Special Servicer; and
(z) in the case of the circumstances described in clause (g) of this
definition, if and when such proceedings are terminated;
so long as at that time no circumstance identified in clauses (a) through (g) of
this definition exists that would cause the Serviced Loan to continue to be
characterized as a Specially Serviced Loan and provided no additional default is
foreseeable in the reasonable good faith judgment of the Special Servicer.
"Similar Law": As defined in Section 5.02(c).
"Single-Purpose-Entity": A Person, other than an individual, whose
organizational documents provide that it is formed solely for the purpose of
owning the related Mortgaged Property, Mortgaged Properties securing other Loans
and assets incidental to the ownership and operation of such Mortgaged Property
or Properties, and that has agreed, either in such organizational documents or
the loan documents relating to any related Loan, that it (a) does not engage in
any business unrelated to such property and the financing thereof; (b) does not
have any indebtedness other than as permitted by the related Mortgage, (c)
maintains its own books, records and accounts, in each case that are separate
and apart from the books, records and accounts of any other Person; (d) conducts
business in its own name; (e) does not guarantee or assume the debts or
obligations of any other person; (f) does not commingle its assets or funds with
those of any other Person; (g) transacts business with affiliates on an arm's
length basis; and (h) holds itself out as being a legal entity separate and
apart from any other Person. In addition, such entity's organizational documents
provide that any dissolution and winding up or insolvency filing for such entity
requires either the unanimous consent of all partners or members, as applicable,
or the consent of an independent Person (whether as a partner, member, or
director in such entity or in any Person that is the managing member or general
partner of such entity or otherwise), and either such organizational documents
or the terms of the loan documents provide that such organizational documents
may not be amended without the consent of the lender as regards such single
purpose entity requirements.
"Single Certificate": For purposes of Section 4.02(a), a Certificate
of any Class of Regular Certificates evidencing a $1,000 denomination or, in the
case of a Class XW Certificate, a 100% Percentage Interest.
"Sole Pooled Certificateholder": Any Holder (or Holders provided
that they act in unanimity) holding 100% of the Class XW Certificates and
Non-Investment Grade Sequential Pay Certificates or an assignment of the voting
rights thereof; provided that the Class Principal Balances, as applicable, of
the Investment Grade Sequential Pay Certificates and the Class A-2FL and Class
A-JFL Certificates have been reduced to zero.
"Special Action": As defined in Section 3.21(e).
"Special Servicer": LNR Partners, Inc., its successors in interest,
or any successor special servicer appointed as herein provided.
"Special Servicing Fee": With respect to each Specially Serviced
Loan and each REO Loan, the fee designated as such and payable to the Special
Servicer pursuant to the first paragraph of Section 3.11(c).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Loan and each REO Loan, 0.25% (25 basis points) per annum.
"Specially Serviced Loan": Any Serviced Loan as to which there then
exists a Servicing Transfer Event. Upon the occurrence of a Servicing Transfer
Event with respect to any Serviced Loan, such Serviced Loan shall remain a
Specially Serviced Loan until the earliest of (i) its removal from the Trust
Fund (in the case of a Mortgage Loan), (ii) an REO Acquisition with respect to
the related Mortgaged Property, and (iii) the cessation of all existing
Servicing Transfer Events with respect to such Serviced Loan.
"Startup Day": With respect to each of REMIC I and REMIC II, the day
designated as such in Section 10.01(c).
"Stated Maturity Date": With respect to any Loan, the Due Date on
which the last payment of principal is due and payable under the terms of the
related Mortgage Note as in effect on the Closing Date, without regard to any
change in or modification of such terms in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or a modification, waiver or
amendment of such Loan granted or agreed to by the Master Servicer or Special
Servicer pursuant to Section 3.20 and, in the case of an ARD Loan, without
regard to its Anticipated Repayment Date.
"Stated Principal Balance": With respect to any Mortgage Loan and
any successor REO Loan, a principal amount initially equal to the Cut-off Date
Balance of such Mortgage Loan, that is permanently reduced on each Distribution
Date (to not less than zero) by (i) all payments (or P&I Advances in lieu
thereof) of, and all other collections allocated as provided in Section 1.03 to,
principal of or with respect to such Mortgage Loan (or successor REO Loan) that
are (or, if they had not been applied to cover any Additional Trust Fund
Expense, would have been) distributed to Certificateholders on such Distribution
Date, and (ii) the principal portion of any Realized Loss incurred in respect of
such Mortgage Loan (or successor REO Loan) during the related Collection Period.
With respect to any Companion Loan (and any successor REO Loan), a principal
amount initially equal to the Cut-off Date Balance of such Companion Loan that
is permanently reduced (to not less than zero) by (i) all payments of, and all
other collections allocated as provided in Section 1.03 to, principal of or with
respect to such Companion Loan (or successor REO Loan) that are (or, if they had
not been applied to cover any Additional Trust Fund Expense, would have been)
distributed to the related Companion Loan Holder, and (ii) the principal portion
of any Realized Loss incurred in respect of such Companion Loan (or successor
REO Loan) during the related Collection Period. Notwithstanding the foregoing,
if a Liquidation Event occurs in respect of any Loan or REO Property, then the
"Stated Principal Balance" of such Loan or of the related REO Loan, as the case
may be, shall be zero commencing as of the Distribution Date in the Collection
Period next following the Collection Period in which such Liquidation Event
occurred. In addition, to the extent that principal from general collections is
used to reimburse Nonrecoverable Advances or Work-out Delayed Reimbursement
Amounts, and such amount has reduced the Principal Distribution Amount, such
amount shall not reduce the Stated Principal Balance prior to a Liquidation
Event or other liquidation or disposition of the related Mortgage Loan or REO
Property (other than for purposes of computing the Weighted Average Adjusted Net
Mortgage Rate).
With respect to a Whole Loan, the Stated Principal Balance shall be
the sum of the "Stated Principal Balance" of the related Mortgage Loan and the
Stated Principal Balance of the related Companion Loan.
"Sub-Servicer": Any Person with which the Master Servicer or the
Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement": The written contract between the Master
Servicer or the Special Servicer, on the one hand, and any Sub-Servicer, on the
other hand as provided in Section 3.22, as the same may be modified or amended.
"Subcontractor": Any vendor, subcontractor or other Person that is
not responsible for the overall servicing (as "servicing" is commonly understood
by participants in the mortgage-backed securities market) of Mortgage Loans but
performs one or more discrete functions identified in Item 1122(d) of Regulation
AB with respect to Mortgage Loans under the direction or authority of the Master
Servicer, the Special Servicer, the Trustee, any Additional Servicer or any
Sub-Servicer.
"Subordinate Certificate": Any Class A-M, Class A-J, Class A-JFL
(through the Class A-JFL Regular Interest), Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O,
Class P, Class Q or Class S Certificate or a REMIC Residual Certificate.
"Substitution Shortfall Amount": An amount equal to the excess if
any of the difference between the Purchase Price of the Deleted Mortgage Loan
calculated as of the date of substitution and the Stated Principal Balance of
such Qualifying Substitute Mortgage Loan as of the date of substitution.
"Successful Bidder": As defined in Section 7.01(d).
"Swap Contract": Either the Class A-2FL Swap Contract or the Class
A-JFL Swap Contract.
"Swap Trusts": Each of Class A-2FL Swap Trust and the Class A-JFL
Swap Trust. For the avoidance of doubt, neither Swap Trust constitutes a part of
the Trust Fund.
"Swap Trustee": The Person who serves as Trustee hereunder shall
also serve as trustee of the Swap Trusts (such Person in such capacity, the
"Swap Trustee").
"Tax Matters Person": With respect to each of REMIC I and REMIC II,
the Person designated as the "tax matters person" of such REMIC in the manner
provided under Treasury Regulations Section 1.860F-4(d) and Treasury Regulations
Section 301.6231(a)(7)-1. The "Tax Matters Person" for each of REMIC I and REMIC
II is the Holder of Certificates evidencing the largest Percentage Interest in
the related Class of REMIC Residual Certificates.
"Tax Returns": The federal income tax returns on IRS Form 1066, U.S.
Real Estate Mortgage Investment Conduit (REMIC) Income Tax Return, including
Schedule Q thereto, Quarterly Notice to Residual Interest Holders of REMIC
Taxable Income or Net Loss Allocation, or any successor forms, to be filed on
behalf of each of REMIC I and REMIC II due to its classification as a REMIC
under the REMIC Provisions and the tax returns due with respect to each Grantor
Trust, together with any and all other information, reports or returns that may
be required to be furnished to the Certificateholders or filed with the IRS or
any other governmental taxing authority under any applicable provisions of
federal or Applicable State Law.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit and Agreement": As defined in Section
5.02(d)(i)(B).
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any Ownership
Interest in a Certificate.
"Trust": The common law trust created hereby.
"Trust Fund": Collectively, all of the assets of REMIC I, REMIC II,
the Grantor Trusts and the Loss of Value Reserve Fund.
"Trustee": Xxxxx Fargo Bank, N.A., in its capacity as Trustee
hereunder, its successor in interest, or any successor trustee appointed as
herein provided.
"Trustee Fee": The fee payable to the Trustee on each Distribution
Date for its services as Trustee hereunder, in an aggregate amount equal to one
month's interest at the Trustee Fee Rate in respect of each Mortgage Loan and
related REO Loan, calculated on the Stated Principal Balance as of the Due Date
in the immediately preceding Collection Period and for the same number of days
(i.e., on the basis of, as applicable, a 360-day year consisting of twelve
30-day months or the actual number of days elapsed during each calendar month in
a 360-day year) respecting which any related interest payment due on such
Serviced Loan or deemed to be due on such related REO Loan is computed under the
terms of the related Mortgage Note (as such terms may be changed or modified at
any time following the Closing Date) and applicable law, and without giving
effect to any Excess Interest that may accrue on any ARD Loan after its
Anticipated Repayment Date.
"Trustee Fee Rate": A rate of 0.00063% per annum.
"Trustee Reports": Each of the CMSA Bond Level File and the CMSA
Collateral Summary File.
"Trustee's Website": The website maintained by the Trustee and
initially located at "xxx.xxxxxxx.xxx", or at such other address as the Trustee
may designate from time to time.
"UCC": The Uniform Commercial Code in effect in the applicable
jurisdiction.
"UCC Financing Statement": A financing statement executed (if
required by the UCC) and filed pursuant to the Uniform Commercial Code, as in
effect in the relevant jurisdiction.
"UCC-1", "UCC-2" and "UCC-3": UCC Financing Statements on Form
UCC-1, Form UCC-2 and Form UCC-3, respectively.
"Uncertificated Accrued Interest": With respect to any REMIC I
Regular Interest, for any Distribution Date, one month's interest at the REMIC I
Remittance Rate applicable to such REMIC I Regular Interest for such
Distribution Date, accrued on the REMIC I Principal Balance of such REMIC I
Regular Interest outstanding immediately prior to such Distribution Date. The
Uncertificated Accrued Interest in respect of the REMIC I Regular Interest for
any Distribution Date shall be deemed to have accrued during the applicable
Interest Accrual Period.
"Uncertificated Distributable Interest": With respect to any REMIC I
Regular Interest, for any Distribution Date, the Uncertificated Accrued Interest
in respect of such REMIC I Regular Interest for such Distribution Date, reduced
(to not less than zero) by the product of (i) the Net Aggregate Prepayment
Interest Shortfall, if any, for such Distribution Date, multiplied by (ii) a
fraction, the numerator of which is the Uncertificated Accrued Interest in
respect of such REMIC I Regular Interest for such Distribution Date, and the
denominator of which is the aggregate Uncertificated Accrued Interest in respect
of all the REMIC I Regular Interests for such Distribution Date.
"Underwriter": Each of Banc of America Securities LLC, Bear, Xxxxxxx
& Co. Inc., Credit Suisse Securities (USA) LLC and Greenwich Capital Markets,
Inc.
"Underwriting Agreement: The underwriting agreement, dated as of May
24, 2007, among Bank of America, the Depositor and the Underwriters.
"Unliquidated Advance": Any Advance previously made by a party
hereto that has been previously reimbursed, as between the Person that made the
Advance hereunder, on the one hand, and the Trust Fund, on the other, as part of
a Workout-Delayed Reimbursement Amount pursuant to subsections (ii) and (vi) of
Section 3.05(a) but that has not been recovered from the Borrower or otherwise
from collections on or the proceeds of the Loan or related REO Property in
respect of which the Advance was made.
"U.S. Person": A citizen or resident of the United States, a
corporation or partnership (except to the extent provided in the applicable
Treasury regulations) created or organized in, or under the laws of, the United
States any State thereof or the District of Columbia, including an entity
treated as a corporation or partnership for federal income tax purposes, or an
estate whose income is subject to United States federal income tax regardless of
its source, or a trust if a court within the United States is able to exercise
primary supervision over the administration of the trust and one or more such
U.S. Persons have the authority to control all substantial decisions of the
trust (or, to the extent provided in applicable Treasury regulations, certain
trusts in existence on August 20, 1996 that are eligible to elect to be treated
as U.S. Persons).
"Voting Rights": The portion of the voting rights of all of the
Certificates that is allocated to any Certificate. At all times during the term
of this Agreement, 98% of the Voting Rights shall be allocated among the Holders
of the various outstanding Classes of Sequential Pay Certificates, the Class
A-2FL Certificates and the Class A-JFL Certificates in proportion to the
respective Class Principal Balances of their Certificates and 2% of the Voting
Rights shall be allocated to the Holders of the Class XW Certificates. None of
the Class V, Class R-I or Class R-II Certificates will be entitled to any Voting
Rights. Voting Rights allocated to a Class of Certificateholders shall be
allocated among such Certificateholders in proportion to the Percentage
Interests evidenced by their respective Certificates.
"Weighted Average Adjusted Net Mortgage Rate": With respect to any
Distribution Date, the weighted average of the respective Adjusted Net Mortgage
Rates for all the Mortgage Loans and related REO Loans, weighted on the basis of
the respective Stated Principal Balances of such Mortgage Loans and REO Loans
outstanding immediately prior to such Distribution Date.
"WHFIT": A "Widely Held Fixed Investment Trust" as that term is
defined in Treasury Regulations Section 1.671-5(b)(22) or successor provisions.
"WHFIT Regulations": Treasury Regulations Section 1.671-5, as
amended.
"Whole Loan": Each A/B Whole Loan, each Pari Passu Whole Loan and
the Beacon Seattle & DC Portfolio Whole Loan, as defined herein.
"Whole Loan Custodial Account": With respect to any Whole Loan
(other than any Non-Serviced Loan), the segregated account or accounts created
and maintained by the Master Servicer pursuant to Section 3.04(e) on behalf of
the related Whole Loan noteholders, which shall be entitled "Bank of America,
National Association, as Master Servicer, in trust for the Whole Loan
noteholders, as their interests may appear". Any such account shall at all times
be an Eligible Account.
"Whole Loan Remittance Amount": With respect to any Master Servicer
Remittance Date and any Whole Loan, an amount equal to (a) all amounts on
deposit in the related Whole Loan Custodial Account as of the commencement of
business on such Master Servicer Remittance Date, net of (b) any portion of the
amounts described in clause (a) of this definition that represents one or more
of the following: (i) collected Monthly Payments that are due on a Due Date
following the end of the related Collection Period, (ii) any unscheduled
payments of principal (including, without limitation, Principal Prepayments, and
interest, Liquidation Proceeds and Insurance Proceeds received after the end of
the related Collection Period), (iii) any Prepayment Premiums received after the
end of the related Collection Period, (iv) any amounts payable or reimbursable
to any Person from the related Whole Loan Custodial Account pursuant to any of
clauses (ii) through (xvii) of Section 3.05(f), (v) any Excess Liquidation
Proceeds that are unrelated to such Whole Loan, and (vi) any amounts deposited
into the related Whole Loan Custodial Account in error, provided that, with
respect to the Master Servicer Remittance Date that occurs in the same calendar
month as the Final Distribution Date, the Whole Loan Remittance Amount will be
calculated without regard to clauses (b)(i), (b)(ii) and (b)(iii) of this
definition.
"Whole Loan REO Account": As defined in Section 3.16(b).
"Withheld Amounts": As defined in Section 4.05.
"Within Grace Period Loan": With respect to any Master Servicer
Remittance Date, any Serviced Loan having any Monthly Payment remaining unpaid
past its Due Date, as of the close of business on the Determination Date in the
same calendar month, but that is not delinquent past the applicable grace period
for such Monthly Payment as of the close of business on such Determination Date.
"Workout-Delayed Reimbursement Amount": With respect to any Serviced
Loan, the amount of any Advance made with respect to such Serviced Loan on or
before the date such Serviced Loan becomes (or, but for the making of three
monthly payments under its modified terms, would then constitute) a Corrected
Serviced Loan, together with (to the extent accrued and unpaid) interest on such
Advances, to the extent that (i) such Advance is not reimbursed to the Person
who made such Advance on or before the date, if any, on which such Serviced Loan
becomes a Corrected Serviced Loan and (ii) the amount of such Advance becomes an
obligation of the Mortgagor to pay such amount under the terms of the modified
loan documents. That any amount constitutes all or a portion of any
Workout-Delayed Reimbursement Amount shall not in any manner limit the right of
any Person hereunder to determine that such amount instead constitutes a
Nonrecoverable Advance reimbursable in the same manner as any other
Nonrecoverable Advance.
"Workout Fee": With respect to each Corrected Serviced Loan, the fee
designated as such and payable to the Special Servicer pursuant to the second
paragraph of Section 3.11(c).
"Workout Fee Rate": With respect to each Corrected Serviced Loan as
to which a Workout Fee is payable, 1.0% (100 basis points).
Section 1.02 Rules of Construction; Other Definitional Provisions.
Unless the context otherwise clearly requires:
(a) the definitions of terms herein shall apply equally to the singular
and plural forms of the terms defined;
(b) whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms;
(c) the words "include", "includes" and "including" shall be deemed to
be followed by the phrase "without limitation";
(d) the word "will" shall be construed to have the same meaning and
effect as the word "shall";
(e) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement,
instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on
such amendments, supplements or modifications set forth herein);
(f) any reference to any Person, or to any Person in a specified
capacity, shall be construed to include such Person's successors and
assigns or such Person's successors in such capacity, as the case
may be;
(g) unless otherwise specified herein, "pro rata" when used in reference
to more than one Class of the Certificates shall mean "pro rata"
based on the outstanding Class Principal Balances of such Classes of
Certificates;
(h) all references in this instrument to designated "Articles",
"Sections", "Subsections", "clauses" and other subdivisions are to
the designated Articles, Sections, Subsections, clauses and other
subdivisions of this Agreement as originally executed; and
(i) the words "herein", "hereof", "hereunder" and other words of similar
import refer to this Agreement as a whole and not to any particular
Article, Section, Subsection or other subdivision.
Section 1.03 Certain Calculations in Respect of the Mortgage Pool.
(a) All amounts collected by or on behalf of the Trust in respect of
any Cross-Collateralized Set in the form of payments from Mortgagors, Insurance
Proceeds, Condemnation Proceeds and Liquidation Proceeds shall be applied among
the Mortgage Loans constituting such Cross-Collateralized Set in accordance with
the express provisions of the related loan documents and, in the absence of such
express provisions, in accordance with the Servicing Standard. All amounts
collected by or on behalf of the Trust in respect of any Whole Loan in the form
of payments from Mortgagors, Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds shall be applied among the Mortgage Loan and Companion
Loan(s) constituting such Whole Loan in accordance with the express provisions
of the related Intercreditor Agreement and, in the absence of such express
provisions, in accordance with this Agreement. All amounts collected by or on
behalf of the Trust in respect of or allocable to any particular Mortgage Loan
in the form of payments from Mortgagors, Insurance Proceeds, Condemnation
Proceeds or Liquidation Proceeds shall be applied to amounts due and owing under
the related Mortgage Note and Mortgage (including for principal and accrued and
unpaid interest) in accordance with the express provisions of the related loan
documents and, in the absence of such express provisions or if and to the extent
that such terms authorize the lender to use its discretion, shall be applied:
first, as a recovery of Nonrecoverable Advances (including interest on such
Nonrecoverable Advances) and Workout-Delayed Reimbursement Amounts that were
reimbursed from general collections on the Mortgage Loans and resulted in
principal distributed to the Certificateholders being reduced as a result of the
first proviso in the definition of "Principal Distribution Amount", and, if
applicable, unpaid related Liquidation Expenses and any outstanding related
Additional Trust Fund Expenses; second, as a recovery of accrued and unpaid
interest (excluding Excess Interest, in the case of an ARD Loan after its
Anticipated Repayment Date) on such Mortgage Loan to, but not including, the
date of receipt by or on behalf of the Trust (or, in the case of a full Monthly
Payment from any Mortgagor, through the related Due Date); third, as a recovery
of principal of such Mortgage Loan then due and owing, including by reason of
acceleration of the Mortgage Loan following a default thereunder (or, if a
Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery
of principal to the extent of its entire remaining unpaid principal balance);
fourth, unless a Liquidation Event has occurred in respect of such Mortgage
Loan, as a recovery of amounts to be currently applied to the payment of, or
escrowed for the future payment of, real estate taxes, assessments, insurance
premiums, ground rents (if applicable) and similar items; fifth, unless a
Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery
of Reserve Funds to the extent then required to be held in escrow; sixth, as a
recovery of any Prepayment Premium then due and owing under such Mortgage Loan;
seventh, as a recovery of any Default Charges then due and owing under such
Mortgage Loan; eighth, as a recovery of any assumption fees and modification
fees then due and owing under such Mortgage Loan; ninth, as a recovery of any
other amounts then due and owing under such Mortgage Loan other than remaining
unpaid principal; tenth, as a recovery of any remaining principal of such
Mortgage Loan to the extent of its entire remaining unpaid principal balance;
and, eleventh, in the case of an ARD Loan after its Anticipated Repayment Date,
as a recovery of accrued and unpaid Excess Interest on such ARD Loan, to but not
including the date of receipt.
(b) Collections by or on behalf of the Trust in respect of each REO
Property, exclusive of amounts to be applied to the payment of the costs of
operating, managing, maintaining and disposing of such REO Property, shall be
treated: first, as a recovery of Nonrecoverable Advances (including interest on
such Nonrecoverable Advance) and Workout-Delayed Reimbursed Amounts with respect
to such REO Loan, that were reimbursed from collections on the Mortgage Loans
and resulted in principal distributed to the Certificateholders being reduced as
a result of the first proviso of the definition of "Principal Distribution
Amount"; second, as a recovery of accrued and unpaid interest (excluding, in the
case of an REO Loan that relates to an ARD Loan after its Anticipated Repayment
Date, Excess Interest) on such REO Loan at the related Mortgage Rate in effect
from time to time to but not including the Due Date in the Collection Period of
receipt; third, as a recovery of principal of such REO Loan to the extent of its
entire unpaid principal balance; fourth, in accordance with the Servicing
Standard of the Master Servicer or the Special Servicer, as applicable, as a
recovery of any other amounts due and owing in respect of such REO Loan; fifth,
as a recovery of any other amounts deemed to be due and owing in respect of the
related REO Loan (other than, in the case of an REO Loan that relates to an ARD
Loan after its Anticipated Repayment Date, accrued and unpaid Excess Interest);
and sixth, in the case of an REO Loan that relates to an ARD Loan after its
Anticipated Repayment Date, as a recovery of any accrued and unpaid Excess
Interest on such REO Loan to but not including the date of receipt by or on
behalf of the Trust, in that order. If either the Beacon Seattle & DC Portfolio
Mortgage Loan or the 000 Xxxxxxxxx Xxxxxx Pari Passu Mortgage Loan becomes an
"REO Loan" as defined under the related Non-Serviced Loan Pooling and Servicing
Agreement, as applicable, the treatment of the foregoing amounts with respect to
such Mortgage Loan shall be subject to the terms of the related Intercreditor
Agreement and the related Non-Serviced Loan Pooling and Servicing Agreement.
(c) For the purposes of calculating distributions pursuant to this
Agreement, Excess Interest on an ARD Loan shall be deemed not to constitute
principal or any portion thereof and shall not be added to the unpaid principal
balance or Stated Principal Balance of such ARD Loan. To the extent any Excess
Interest is not paid on a current basis, it shall be deemed to be deferred
interest. Any reference to the Certificate Principal Balance of any Class of
Certificates on or as of a Distribution Date shall refer to the Certificate
Balance of such Class of Certificates on such Distribution Date after giving
effect to any distributions made on such Distribution Date pursuant to Section
4.01(a).
(d) Insofar as amounts received in respect of any Mortgage Loan or
related REO Property and allocable to shared fees and shared charges owing in
respect of such Mortgage Loan or the related REO Loan, as the case may be, that
constitute Additional Master Servicing Compensation payable to the Master
Servicer and/or Additional Special Servicing Compensation payable to the Special
Servicer, are insufficient to cover the full amount of such fees and charges,
such amounts shall be allocated between such of those fees and charges as are
payable to the Master Servicer, on the one hand, and such of those fees and
charges as are payable to the Special Servicer, on the other, pro rata in
accordance with their respective entitlements.
(e) Notwithstanding anything contained herein to the contrary, with
respect to each Mortgage Loan subject to an involuntary prepayment of principal
during a Collection Period, all interest collected during such Collection Period
in connection with such involuntary prepayment of principal that the related
lender would be entitled to retain under the related loan documents shall be
treated as excess interest and shall be used to offset any shortfalls of
interest for the related Distribution Date resulting from involuntary
prepayments of principal during such Collection Period prior to such shortfalls
of interest being allocated to any Class of Certificates. Any such interest not
required to offset shortfalls of interest for the related Distribution Date
pursuant to the immediately preceding sentence shall constitute Additional
Master Servicing Compensation.
(f) The foregoing applications of amounts received in respect of any
Mortgage Loan or REO Property shall be determined by the Master Servicer and
reflected in the appropriate monthly report from the Master Servicer and in the
appropriate monthly Trustee Report as provided in Section 4.02.
(g) For purposes of calculating LIBOR with respect to the Class
A-2FL and Class A-JFL Certificates and each Interest Accrual Period, LIBOR shall
be rounded, if necessary, to the nearest hundred-thousandth of a percentage
point.
If an expense under this Agreement relates in the reasonable
judgment of the Master Servicer, the Special Servicer or the Trustee, as
applicable, primarily to the administration of the Trust Fund, any REMIC formed
hereunder or to any determination respecting the amount, payment or avoidance of
any tax under the REMIC Provisions or the actual payment of any REMIC tax or
expense, or this Agreement states that any expense is solely "an expense of the
Trust Fund" or words of similar import, then such expense shall not be allocated
to, deducted or reimbursed from, or otherwise charged against any Companion Loan
and such Companion Loan shall not suffer any adverse consequences as a result of
the payment of such expense.
Section 1.04 Cross-Collateralized Mortgage Loans.
Notwithstanding anything herein to the contrary, it is hereby
acknowledged that the sets of Mortgage Loans identified on the Mortgage Loan
Schedule as being cross-collateralized with each other are, in the case of each
such particular set of Mortgage Loans, by their terms, cross-defaulted and
cross-collateralized with each other. For purposes of reference only in this
Agreement, and without in any way limiting the servicing rights and powers of
the Master Servicer and/or the Special Servicer, with respect to any
Cross-Collateralized Mortgage Loan (or successor REO Loan), the Mortgaged
Property (or REO Property) that relates or corresponds thereto shall be the
property identified in the Mortgage Loan Schedule as corresponding thereto. The
provisions of this Agreement shall be interpreted in a manner consistent with
this Section 1.04; provided that, if there exists with respect to any
Cross-Collateralized Set only one original of any document referred to in the
definition of "Mortgage File" covering all the Mortgage Loans in such
Cross-Collateralized Set, then the inclusion of the original of such document in
the Mortgage File for any of the Mortgage Loans constituting such
Cross-Collateralized Set shall be deemed an inclusion of such original in the
Mortgage File for each such Mortgage Loan.
Section 1.05 Incorporation of Preliminary Statement.
The parties hereto acknowledge that the Preliminary Statement at the
beginning of this Agreement constitutes a part of this Agreement.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES; ORIGINAL
ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.
(a) It is the intention of the parties hereto that a common law
trust be established pursuant to this Agreement and further such trust be
designated as "Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007 Trust 2007-2". Xxxxx Fargo Bank, N.A. is
hereby appointed, and does hereby agree to act, as Trustee hereunder and, in
such capacity, to hold the Trust Fund in trust for the exclusive use and benefit
of all present and future Certificateholders. It is not intended that this
Agreement create a partnership or a joint-stock association.
(b) The Depositor, concurrently with the execution and delivery
hereof, does hereby transfer, assign, sell, set over and otherwise convey to the
Trustee, in trust, without recourse, for the benefit of the Certificateholders
(and for the benefit of the other parties to this Agreement as their respective
interests may appear) and, in the case of a Whole Loan, the related Companion
Loan Holder, all the right, title and interest of the Depositor in, to and under
(i) the Mortgage Loans and all documents included in the related Mortgage Files
and Servicing Files, (ii) the Mortgage Loan Purchase and Sale Agreements and
(iii) all other assets included or to be included in the Trust Fund. Such
assignment includes (i) the Mortgage Loans that from time to time are subject to
this Agreement, all interest accrued on the Mortgage Loans on and after the
Cut-off Date and all principal payments received on the Mortgage Loans after the
Cut-off Date (other than principal and interest payments due and payable on the
Mortgage Loans on or before the Cut-off Date, which shall belong and be promptly
remitted to the applicable Mortgage Loan Seller), together with all documents
delivered or caused to be delivered hereunder with respect to such Mortgage
Loans by the related Mortgage Loan Seller; (ii) any REO Property acquired in
respect of a Mortgage Loan; (iii) such funds or assets that from time to time
are deposited into the Certificate Account, the REMIC I Distribution Account,
the REMIC II Distribution Account, the Interest Reserve Account, the Excess
Interest Distribution Account, the Excess Liquidation Proceeds Account and the
REO Account (if established), and (iv) in the case of a Mortgage Loan included
in a Whole Loan, all the right, title and interest of the Depositor in, to and
under the related Intercreditor Agreement. The conveyance of the Beacon Seattle
& DC Portfolio Mortgage Loan and the 000 Xxxxxxxxx Xxxxxx Pari Passu Mortgage
Loan, along with the right to service each of the Beacon Seattle & DC Portfolio
Mortgage Loan and the 000 Xxxxxxxxx Xxxxxx Pari Passu Mortgage Loan are subject
to the terms and conditions of the related Non-Serviced Loan Pooling and
Servicing Agreement and the related Intercreditor Agreement. This conveyance is
subject to the rights of the Sub-Servicers pursuant to the Sub-Servicing
Agreements, which rights are subject in any event to this Agreement.
Under United States generally accepted accounting principles, the
Depositor shall report: (i) its acquisition of the Mortgage Loans from the
Mortgage Loan Sellers, pursuant to the Mortgage Loan Purchase and Sale
Agreements, as a purchase of such Mortgage Loans from the Mortgage Loan Sellers;
and (ii) its transfer of the Mortgage Loans to the Trustee, pursuant to this
Section 2.01(b), as a sale of such Mortgage Loans to the Trustee. In connection
with the foregoing, the Depositor shall cause all of its records to reflect such
acquisition as a purchase and such transfer as a sale (in each case, as opposed
to a secured loan).
After the Depositor's transfer of the Mortgage Loans to the Trustee pursuant to
this Section 2.01(b), the Depositor shall not take any action inconsistent with
the Trust's ownership of the Mortgage Loans.
In connection with the Depositor's assignment pursuant to this
Section 2.01(b), the Depositor hereby represents and warrants that it has
contractually obligated the Mortgage Loan Sellers, at the Mortgage Loan Sellers'
expense, pursuant to the Mortgage Loan Purchase and Sale Agreements, to deliver
to and deposit with, or cause to be delivered to and deposited with, the Trustee
or a Custodian appointed thereby, on or before the Closing Date, the Mortgage
File and any Additional Collateral (other than Reserve Funds) for each Mortgage
Loan acquired by the Depositor from the Mortgage Loan Sellers; provided,
however, with respect to any Non-Serviced Mortgage Loan, only the original
Mortgage Note (and any related allonge) evidencing such Non-Serviced Mortgage
Loan and copies of any related Intercreditor Agreement shall be delivered to the
Trustee or a Custodian appointed thereby. In addition, with respect to each
Mortgage Loan under which any Additional Collateral is in the form of a Letter
of Credit as of the Closing Date, the Depositor hereby represents and warrants
that it has contractually obligated the Mortgage Loan Sellers to cause to be
prepared, executed and delivered to the issuer of each such Letter of Credit
such notices, assignments and acknowledgments as are required under such Letter
of Credit to assign, without recourse, to the Trustee the related Mortgage Loan
Seller's rights as the beneficiary thereof and drawing party thereunder;
provided that the originals of such Letter of Credit shall be delivered to the
Master Servicer. The Depositor shall deliver to the Trustee on or before the
Closing Date a fully executed counterpart of each Mortgage Loan Purchase and
Sale Agreement. If a Mortgage Loan Seller fails to deliver on or before the
Closing Date, with respect to any related Mortgage Loan so assigned, a copy of
the Mortgage, a copy of any related Ground Lease, the originals and copies of
any related Letters of Credit, the original or a copy of the policy of lender's
title insurance or, if such policy has not yet been issued, a "marked-up" pro
forma title policy or commitment for title insurance marked as binding and
countersigned by the issuer or its authorized agent either on its face or by an
acknowledged closing instruction or escrow letter, or, with respect to
hospitality properties, a copy of the franchise agreement, an original copy of
the comfort letter and any transfer documents with respect to such comfort
letter, the delivery requirements of this Section 2.01(b) shall be deemed
satisfied with respect to such missing document if such Mortgage Loan Seller
delivers such document to the Trustee (or, in the case of originals of Letters
of Credit, to the Master Servicer) within 15 days following the Closing Date.
None of the Trustee, any Custodian, the Master Servicer or the Special Servicer
shall be liable for any failure by any Mortgage Loan Seller or the Depositor to
comply with the document delivery requirements of the Mortgage Loan Purchase and
Sale Agreements and this Section 2.01(b).
The conveyance of the Mortgage Loans and the related rights and
property accomplished hereby is absolute and is intended by the parties hereto
to constitute an absolute transfer of such Mortgage Loans and such other related
rights and property by the Depositor to the Trustee for the benefit of the
Certificateholders. Furthermore, it is not intended that such conveyance be a
pledge of security for a loan. If such conveyance is determined to be a pledge
of security for a loan, however, the Depositor and the Trustee intend that the
rights and obligations of the parties to such loan shall be established pursuant
to the terms of this Agreement. The Depositor and the Trustee also intend and
agree that, in such event, (i) this Agreement shall constitute a security
agreement under applicable law, (ii) the Depositor shall be deemed to have
granted to the Trustee (in such capacity) a first priority security interest in
all of the Depositor's right, title and interest in and to the assets
constituting the Trust Fund, including the Mortgage Loans subject hereto from
time to time, all principal and interest received on or with respect to such
Mortgage Loans after the Cut-off Date (other than scheduled payments of interest
and principal due and payable on such Mortgage Loans on or prior to the related
Due Date in June 2007 or, in the case of a Replacement Mortgage Loan, on or
prior to the related date of substitution), all amounts held from time to time
in the Certificate Account, the REMIC I Distribution Account, the REMIC II
Distribution Account, the Interest Reserve Account, the Excess Interest
Distribution Account, the Excess Liquidation Proceeds Account, the REO Account,
the Class A-2FL Floating Rate Account or the Class A-JFL Floating Rate Account,
and all reinvestment earnings on such amounts, and all of the Depositor's right,
title and interest under the Mortgage Loan Purchase and Sale Agreements, (iii)
the possession by the Trustee or its agent of the Mortgage Notes with respect to
the Mortgage Loans subject hereto from time to time and such other items of
property that constitute instruments, money, negotiable documents or chattel
paper shall be deemed to be "possession by the secured party" or possession by a
purchaser or person designated by such secured party for the purpose of
perfecting such security interest under applicable law, and (iv) notifications
to, and acknowledgments, receipts or confirmations from, Persons holding such
property shall be deemed to be notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of the Trustee for the purpose of perfecting such security interest under
applicable law.
(c) As soon as reasonably possible, and in any event within 90 days
after the later of (i) the Closing Date (or, in the case of a Replacement
Mortgage Loan substituted as contemplated by Section 2.03, after the related
date of substitution) and (ii) the date on which all recording information
necessary to complete the subject document is received by the Trustee, the
Trustee shall complete (to the extent necessary), and shall submit for recording
or filing, as the case may be, in the appropriate office for real property
records or UCC Financing Statements, as applicable, each assignment of Mortgage
and assignment of Assignment of Leases (except with respect to any Mortgage or
Assignment of Leases that has been recorded in the name of MERS or its designee)
in favor of the Trustee referred to in clauses (iv) and (v) of the definition of
"Mortgage File" that has been received by the Trustee or a Custodian on its
behalf and each original UCC-2 and UCC-3 in favor of the Trustee referred to in
clause (viii) of the definition of "Mortgage File" that has been received by the
Trustee or a Custodian on its behalf. Upon request of the Master Servicer (if
reasonably necessary for the ongoing administration and/or servicing of the
related Mortgage Loan by the Master Servicer) and at the expense of the related
Mortgage Loan Seller, the Trustee shall forward to the Master Servicer a copy of
any such assignment that has been received by the Trustee. Each such assignment
shall reflect that it should be returned by the public recording office to the
Trustee following recording, and each such UCC-2 and UCC-3 shall reflect that
the file copy thereof should be returned to the Trustee following filing;
provided that in those instances where the public recording office retains the
original assignment of Mortgage or assignment of Assignment of Leases the
Trustee shall obtain therefrom a certified copy of the recorded original at the
expense of the related Mortgage Loan Seller. The Trustee may assume for purposes
of recordation of each UCC-2 and UCC-3 that the Mortgage File containing the
related UCC-1 includes one state level UCC Financing Statement filing in the
state of incorporation of the related Borrower for each Mortgaged Property (or
with respect to any Mortgage Loan that has two or more related Borrowers, the
state of incorporation of each such Borrower). Each Mortgage Loan Seller will
deliver to the Trustee the UCC Financing Statements, completed pursuant to
Revised Article 9 of the UCC, on the new national forms, in recordable form, to
be recorded pursuant to this Section 2.01(c). The Trustee will submit such UCC
Financing Statements for filing in the state of incorporation as so indicated on
the documents provided. If any such document or instrument is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, the
Trustee shall direct the related Mortgage Loan Seller to prepare or cause to be
prepared promptly, pursuant to the related Mortgage Loan Purchase and Sale
Agreement, a substitute therefor or cure such defect, as the case may be, and
thereafter the Trustee shall, upon receipt thereof, cause the same to be duly
recorded or filed, as appropriate with any re-recording, re-filing or rejection
expenses at the expense of such Mortgage Loan Seller. If such Mortgage Loan
Seller has been so notified and has not prepared a substitute document or cured
such defect, as the case may be, within 60 days, the Trustee shall promptly
notify the Master Servicer, the Special Servicer, the Rating Agencies, the
related Companion Loan Holder (if a Whole Loan is involved and the Trustee has
knowledge of such Companion Loan Holder) and the Directing Certificateholder.
Such Mortgage Loan Seller shall be responsible for paying the reasonable fees
and out-of-pocket expenses of the Trustee in connection with the
above-referenced recording and filing of documents insofar as it relates to the
Mortgage Loans transferred by such Mortgage Loan Seller and acquired by the
Depositor from such Mortgage Loan Seller, all as more particularly provided for
in the related Mortgage Loan Purchase and Sale Agreement.
(d) In connection with the Depositor's assignment pursuant to
Section 2.01(b), the Depositor hereby represents and warrants that it has
contractually obligated each Mortgage Loan Seller, at such Mortgage Loan
Seller's expense, pursuant to the related Mortgage Loan Purchase and Sale
Agreement, to deliver to and deposit with, or cause to be delivered to and
deposited with, the Master Servicer or its designee, on or before the Closing
Date, the following items: (i) asset summaries delivered to the Rating Agencies,
originals or copies of all financial statements, appraisals,
environmental/engineering reports, leases, rent rolls and tenant estoppels in
the possession or under the control of such Mortgage Loan Seller that relate to
the Mortgage Loans transferred by such Mortgage Loan Seller to the Depositor
and, to the extent they are not required to be a part of a Mortgage File in
accordance with the definition thereof, originals or copies of all documents,
certificates, letters of credit, environmental insurance policies and related
endorsements, and opinions in the possession or under the control of such
Mortgage Loan Seller that were delivered by or on behalf of the related
Mortgagors in connection with the origination of such Mortgage Loans and that
are reasonably required for the ongoing administration and servicing of such
Mortgage Loans (except to the extent such items represent draft documents,
internal notes, attorney-client privileged communications or credit analyses);
and (ii) all unapplied Reserve Funds and Escrow Payments in the possession or
under the control of such Mortgage Loan Seller that relate to, and that are
required for the ongoing administration and servicing of, the Mortgage Loans
transferred by such Mortgage Loan Seller to the Depositor. The Master Servicer
shall hold all such documents, records and funds on behalf of the Trustee in
trust for the benefit of the Certificateholders.
(e) In the event a Mortgage Loan is repurchased by the related
Mortgage Loan Seller, where applicable, the Trustee shall re-assign any rights
that such Mortgage Loan Seller had with respect to representations and
warranties made by a third party originator to such Mortgage Loan Seller under
the related Mortgage Loan Purchase and Sale Agreement in respect of any such
Mortgage Loan.
Section 2.02 Acceptance of REMIC I by Trustee.
(a) The Trustee, by the execution and delivery of this Agreement,
acknowledges receipt by it or a Custodian on its behalf of, subject to the
provisions of Section 2.01 and to the further review provided for in this
Section 2.02, and further subject to the Schedule of Exceptions attached hereto
as Schedule III, with respect to each Mortgage Loan, an original Mortgage Note
endorsed to the Trustee and declares that it or a Custodian on its behalf holds
and will hold the documents delivered or caused to be delivered by the Mortgage
Loan Sellers in respect of the Mortgage Loans, and that it holds and will hold
all other assets included in REMIC I in trust for the exclusive use and benefit
of all present and future Certificateholders (other than the Class V
Certificateholders) and the Trustee as holder of the REMIC I Regular Interests,
the Class A-2FL Regular Interest and the Class A-JFL Regular Interest. To the
extent that the Mortgage File for a Mortgage Loan included in a Whole Loan
relates to the Mortgage Loan as well as the related Companion Loan, the Trustee
shall also hold such Mortgage File for the use and benefit of the related
Companion Loan Holder.
(b) On or about the ninetieth day following the Closing Date, the
Trustee or a Custodian on its behalf shall review the documents delivered to it
or such Custodian with respect to each Mortgage Loan, and the Trustee shall,
subject to Sections 1.04, 2.02(c) and 2.02(d), certify electronically or in
writing (substantially in the form of Exhibit F) to each of the other parties
hereto, the Mortgage Loan Sellers, the related Companion Loan Holder (if a Whole
Loan is involved and the Trustee has knowledge of such Companion Loan Holder)
and the Directing Certificateholder, that, as to each Mortgage Loan then subject
to this Agreement (except as specifically identified in any exception report
annexed to such certification): (i) the original Mortgage Note specified in
clause (i) of the definition of "Mortgage File" and all allonges thereto, if any
(or a copy of such Mortgage Note, together with a lost note affidavit certifying
that the original of such Mortgage Note has been lost), the original or copy of
documents specified in clauses (ii) through (vii) and (xii) of the definition of
"Mortgage File" (without regard to the parentheticals relating to such clauses),
have been received by it or a Custodian on its behalf; (ii) if such report is
due more than 180 days after the Closing Date, the recordation/filing
contemplated by Section 2.01(c) has been completed (based solely on receipt by
the Trustee of the particular recorded/filed documents); (iii) all documents
received by it or any Custodian with respect to such Mortgage Loan have been
reviewed by it or by such Custodian on its behalf and (A) appear regular on
their face (handwritten additions, changes or corrections shall not constitute
irregularities if initialed by the Mortgagor), (B) appear to have been executed
and (C) purport to relate to such Mortgage Loan; and (iv) the Trustee on behalf
of the Trust is shown as the owner of each Mortgage recorded in the name of MERS
or its designee. The Trustee may assume that, for purposes of reviewing the
items in clause (viii) of the definition of Mortgage File and completing the
certification attached hereto as Exhibit F, the related UCC-1 includes one state
level UCC Financing Statement filing in the state of incorporation of the
related Borrower for each Mortgaged Property (or with respect to any Mortgage
Loan that has two or more related Borrowers, the state of incorporation of each
such Borrower). If any exceptions are noted or if the recordation/filing
contemplated by Section 2.01(c) has not been completed (based solely on receipt
by the Trustee of the particular documents showing evidence of the
recordation/filing), the Trustee shall every 90 days after the ninetieth day
following the Closing Date until the earliest of (i) the date on which such
exceptions are eliminated and such recordation/filing has been completed, (ii)
the date on which all the Defective Mortgage Loans are removed from the Trust
Fund, and (iii) the second anniversary of the Closing Date), distribute an
updated exception report to the recipients of the above mentioned certification
that was submitted to such recipients substantially in the form of Exhibit F. At
any time subsequent to the second anniversary of the Closing Date, the Trustee
shall, upon request and at the requesting party's expense, prepare and deliver
to the requesting party (including any Certificateholder or Certificate Owner)
an updated version of the exception report provided for in the prior sentence.
(c) If a Mortgage Loan Seller substitutes a Replacement Mortgage
Loan for any Defective Mortgage Loan as contemplated by Section 2.03, the
Trustee or a Custodian on its behalf shall review the documents delivered to it
or such Custodian with respect to such Replacement Mortgage Loan, and the
Trustee shall deliver a certification comparable to that described in the prior
paragraph, in respect of such Replacement Mortgage Loan, on or about the
thirtieth day following the related date of substitution (and, if any exceptions
are noted, every 90 days thereafter until the earliest of (i) the date on which
such exceptions are eliminated and all related recording/filing has been
completed, (ii) the date on which such Replacement Mortgage Loan is removed from
the Trust Fund and (iii) the second anniversary of the date on which such
Replacement Mortgage Loan was added to the Trust Fund). At any time subsequent
to the second anniversary of the date on which such Replacement Mortgage Loan is
added to the Trust Fund, the Trustee shall, upon request, prepare and deliver to
the requesting party (including any Certificateholder or Certificate Owner) an
updated version of the exception report provided for in the prior sentence.
(d) None of the Trustee, the Master Servicer, the Special Servicer
or any Custodian is under any duty or obligation (i) to determine whether any of
the documents specified in clauses (iii), (v), (vi) and (viii) through (xii) of
the definition of "Mortgage File" exist or are required to be delivered by the
Mortgage Loan Sellers in respect of any Mortgage Loan, or (ii) to inspect,
review or examine any of the documents, instruments, certificates or other
papers relating to the Mortgage Loans delivered to it to determine that the same
are valid, legal, effective, genuine, binding, enforceable, sufficient or
appropriate for the represented purpose or that they are other than what they
purport to be on their face. Notwithstanding the foregoing, with respect to
Letters of Credit constituting Additional Collateral referenced in clause (xi)
of the definition of "Mortgage File" the Trustee shall perform the review set
forth in Sections 2.02(b)(iii)(A) through (C). Furthermore, except as expressly
provided in Section 2.02(b), none of the Trustee, the Master Servicer, the
Special Servicer or any Custodian shall have any responsibility for determining
whether the text of any assignment or endorsement is in proper or recordable
form, whether the requisite recording of any document is in accordance with the
requirements of any applicable jurisdiction, or whether a blanket assignment is
permitted in any applicable jurisdiction.
(e) In performing the reviews contemplated by subsections (b) and
(c) of this Section 2.02, the Trustee may conclusively rely on the Mortgage Loan
Sellers as to the purported genuineness of any such document and any signature
thereon. It is understood that the scope of the Trustee's review of the Mortgage
Files is limited solely to confirming that the documents specified in clauses
(i) through (v) and clause (vii) of the definition of "Mortgage File", have been
received and such additional information as will be necessary for delivering the
certifications required by subsections (a) and (b) of this Section 2.02. If a
Mortgage Loan Seller is notified of or discovers any error in a Mortgage Loan
Checklist, then such Mortgage Loan Seller shall amend such Mortgage Loan
Checklist within 180 days and distribute such Mortgage Loan Checklist to each of
the other parties hereto; provided, however, an error in such Mortgage Loan
Checklist by itself shall not be deemed to be a Material Breach or Material
Document Defect. Such new, corrected Mortgage Loan Checklist shall be deemed to
amend and replace the existing Mortgage Loan Checklist; provided, however, the
correction or amendment of such Mortgage Loan Checklist by itself shall not be
deemed to be a cure of a Material Breach or Material Document Defect.
Section 2.03 Mortgage Loan Seller's Repurchase or Substitution of
Mortgage Loans for Material Document Defects and Material Breaches.
(a) If any party hereto discovers, or receives written notice from a
non-party, that a Document Defect or Breach exists with respect to any Mortgage
Loan, then such party shall give prompt written notice thereof to the other
parties hereto, including (unless it is the party that discovered the Document
Defect or Breach) the Trustee. Upon the Trustee's discovery or receipt of notice
that a Document Defect or Breach exists with respect to any Mortgage Loan, the
Trustee shall notify the Directing Certificateholder the related Companion Loan
Holder (if a Whole Loan is involved and the Trustee has knowledge of such
Companion Loan Holder) and the related Mortgage Loan Seller.
(b) If necessary, the Trustee shall request the related Mortgage
Loan Seller to comply with Section 4(c) of the related Mortgage Loan Purchase
and Sale Agreement with respect to any Document Defect or other deficiency in a
Mortgage File relating to a Mortgage Loan. If the Trustee becomes aware of any
failure on the part of any Mortgage Loan Seller to do so, the Trustee shall
promptly notify the Master Servicer and the Special Servicer.
(c) Promptly upon its becoming aware of any Material Document Defect
or Material Breach with respect to any Mortgage Loan, the Master Servicer shall
(and the Special Servicer may) notify the related Mortgage Loan Seller in
writing of such Material Document Defect or Material Breach, as the case may be,
and direct such Mortgage Loan Seller that it must, not later than 90 days from
the receipt by such parties of such notice (such 90-day period, the "Initial
Resolution Period"), correct or cure such Material Document Defect or Material
Breach, as the case may be, in all material respects, or repurchase the
Defective Mortgage Loan (as, if and to the extent required by the related
Mortgage Loan Purchase and Sale Agreement), at the applicable Purchase Price;
provided, however, if such Mortgage Loan Seller certifies in writing to the
Trustee (i) that, as evidenced by an accompanying Opinion of Counsel, any such
Material Breach or Material Document Defect, as the case may be, does not and
will not cause the Defective Mortgage Loan, to fail to be a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code, (ii) that such Material
Breach or Material Document Defect, as the case may be, is capable of being
corrected or cured but not within the applicable Initial Resolution Period,
(iii) that such Mortgage Loan Seller has commenced and is diligently proceeding
with the cure of such Material Breach or Material Document Defect, as the case
may be, within the applicable Initial Resolution Period, and (iv) that such
Mortgage Loan Seller anticipates that such Material Breach or Material Document
Defect, as the case may be, will be corrected or cured within an additional
period not to exceed the Resolution Extension Period (a copy of which
certification shall be delivered by the Trustee to the Master Servicer, the
Special Servicer, the Directing Certificateholder, and the related Companion
Loan Holder (if a Whole Loan is involved and the Trustee has knowledge of such
Companion Loan Holder), then such Mortgage Loan Seller shall have an additional
period equal to the applicable Resolution Extension Period to complete such
correction or cure or, failing such, to repurchase the Defective Mortgage Loan;
provided, further, in lieu of effecting any such repurchase (but, in any event,
no later than such repurchase would have to have been completed), such Mortgage
Loan Seller shall be permitted, during the three-month period following the
Startup Day for REMIC I (or during the two-year period following such Startup
Day if the affected Mortgage Loan is a "defective obligation" within the meaning
of Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulations Section
1.860G-2(f)), to replace the affected Mortgage Loan, other than a Non-Serviced
Mortgage Loan, with one or more Qualifying Substitute Mortgage Loans and to pay
a cash amount equal to the applicable Substitution Shortfall Amount, subject to
any other applicable terms and conditions of the related Mortgage Loan Purchase
and Sale Agreement and this Agreement. If any substitution for a Deleted
Mortgage Loan is not completed in all respects by the end of the three-month
(or, if applicable, the two-year) period contemplated by the preceding sentence,
such Mortgage Loan Seller shall be barred from doing so (and, accordingly, will
be limited to the cure/repurchase remedies contemplated hereby), and no party
hereto shall be liable thereto for any loss, liability or expense resulting from
the expiration of such period. If any Mortgage Loan is to be repurchased or
replaced as contemplated by this Section 2.03, the Master Servicer shall
designate the Certificate Account as the account to which funds in the amount of
the applicable Purchase Price or Substitution Shortfall Amount (as the case may
be) are to be wired, and the Master Servicer shall promptly notify the Trustee
when such deposit is made. Any such repurchase or replacement of a Mortgage Loan
shall be on a whole loan, servicing released basis.
(d) If one or more of the Mortgage Loans constituting a
Cross-Collateralized Set are the subject of a Breach or Document Defect, then,
for purposes of (i) determining whether such Breach or Document Defect is a
Material Breach or Material Document Defect, as the case may be, and (ii) the
application of remedies, such Cross-Collateralized Set shall be treated as a
single Mortgage Loan.
If (x) any Mortgage Loan is required to be repurchased or
substituted as contemplated in this Section 2.03, (y) such Mortgage Loan is a
Crossed-Collateralized Mortgage Loan or is secured by a portfolio of Mortgaged
Properties and the related loan documents provide that a Mortgaged Property may
be uncrossed from the other Mortgaged Properties in that portfolio, and (z) the
applicable Material Breach or Material Document Defect does not constitute a
Material Breach or Material Document Defect, as the case may be, as to any
related Crossed-Collateralized Mortgage Loan or applies to only specific
Mortgaged Properties included in such portfolio (without regard to this
paragraph), then the applicable Material Breach or Material Document Defect (as
the case may be) will be deemed to constitute a Material Breach or Material
Document Defect (as the case may be) as to any related Crossed-Collateralized
Mortgage Loan and to each other Mortgaged Property included in such portfolio
and the related Mortgage Loan Seller shall repurchase or substitute for any
related Crossed-Collateralized Mortgage Loan in the manner described above
unless, in the case of a Material Breach or Material Document Defect, both of
the following conditions would be satisfied if such Mortgage Loan Seller were to
repurchase or substitute for only the affected Crossed-Collateralized Mortgage
Loans or affected Mortgaged Properties as to which a Material Breach or Material
Document Defect had occurred without regard to this paragraph as calculated by
the Master Servicer (in consultation with the Special Servicer and the Directing
Certificateholder): (i) the debt service coverage ratio for any related
Cross-Collateralized Mortgage Loans or Mortgaged Properties for the four
calendar quarters immediately preceding the repurchase or substitution is not
less than the greater of (a) the debt service coverage ratio immediately prior
to the repurchase, and (b) the debt service coverage ratio on the Closing Date,
subject to a floor of 1.25x, and (ii) the loan-to-value ratio for any related
Crossed-Collateralized Mortgage Loans or Mortgaged Properties is not greater
than the lesser of (a) the loan-to-value ratio immediately prior to the
repurchase and (b) the loan-to-value ratio on the Closing Date, subject to a cap
of 75%. In the event that both of the conditions set forth in the preceding
sentence would be satisfied, the related Mortgage Loan Seller may elect either
to repurchase or substitute for only the affected Crossed-Collateralized
Mortgage Loan or Mortgaged Properties as to which the Material Breach or
Material Document Defect exists or to repurchase or substitute for the aggregate
Crossed-Collateralized Mortgage Loans or Mortgaged Properties.
To the extent that the related Mortgage Loan Seller repurchases or
substitutes for an affected Cross-Collateralized Mortgage Loan or Mortgaged
Property in the manner prescribed above while the Trustee continues to hold any
related Cross-Collateralized Mortgage Loans, such Mortgage Loan Seller and the
Depositor shall either uncross the repurchased Cross-Collateralized Mortgage
Loan or affected Mortgaged Property (provided the Depositor has received an
Opinion of Counsel that uncrossing the repurchased Cross-Collateralized Mortgage
Loan will not adversely affect the status of REMIC I or REMIC II as a REMIC
under the Code) or shall forbear from enforcing any remedies against the other's
Primary Collateral, but each is permitted to exercise remedies against the
Primary Collateral securing its respective affected Cross-Collateralized
Mortgage Loans or Mortgaged Properties, including, with respect to the Trustee,
the Primary Collateral securing Mortgage Loans still held by the Trustee, so
long as such exercise does not materially impair the ability of the other party
to exercise its remedies against its Primary Collateral. If the exercise of
remedies by one party would materially impair the ability of the other party to
exercise its remedies with respect to the Primary Collateral securing the
Cross-Collateralized Mortgage Loans or Mortgaged Properties held by such party,
then both parties shall forbear from exercising such remedies until the loan
documents can be modified to remove the threat of such impairment as a result of
the exercise of remedies.
(e) Whenever one or more mortgage loans are substituted for a
Defective Mortgage Loan by the related Mortgage Loan Seller as contemplated by
this Section 2.03, the Master Servicer shall direct such party effecting the
substitution to deliver the related Mortgage File to the Trustee, to certify
that such substitute mortgage loan satisfies or such substitute mortgage loans
satisfy, as the case may be, all of the requirements of the definition of
"Qualifying Substitute Mortgage Loan" and to send such certification to the
Trustee. No mortgage loan may be substituted for a Defective Mortgage Loan as
contemplated by this Section 2.03 if the Mortgage Loan to be replaced was itself
a Replacement Mortgage Loan, in which case, absent a cure of the relevant
Material Breach or Material Document Defect, the Defective Mortgage Loan will be
required to be repurchased as contemplated hereby. Monthly Payments due with
respect to each Replacement Mortgage Loan (if any) after the related date of
substitution, and Monthly Payments due with respect to each corresponding
Deleted Mortgage Loan (if any) after the related Due Date in June 2007 and on or
prior to the related date of substitution, shall be part of the Trust Fund.
Monthly Payments due with respect to each Replacement Mortgage Loan (if any) on
or prior to the related date of substitution, and Monthly Payments due with
respect to each corresponding Deleted Mortgage Loan (if any) after the related
date of substitution, shall not be part of the Trust Fund and are to be remitted
by the Master Servicer to the party effecting the related substitution promptly
following receipt.
(f) If any Mortgage Loan is to be repurchased or replaced by the
related Mortgage Loan Seller as contemplated by this Section 2.03, the Master
Servicer shall direct such Mortgage Loan Seller to amend the related Mortgage
Loan Schedule to reflect the removal of any Deleted Mortgage Loan and, if
applicable, the substitution of the related Replacement Mortgage Loan(s); and,
upon its receipt of such amended Mortgage Loan Schedule, the Master Servicer
shall deliver or cause the delivery of such amended Mortgage Loan Schedule to
the other parties hereto. Upon any substitution of one or more Replacement
Mortgage Loans for a Deleted Mortgage Loan, such Replacement Mortgage Loan(s)
shall become part of the Trust Fund and be subject to the terms of this
Agreement in all respects.
(g) Upon receipt of a Request for Release (in the form of Exhibit D
attached hereto) and an Officer's Certificate from the Master Servicer to the
effect that the full amount of the Purchase Price or Substitution Shortfall
Amount (as the case may be) for any Mortgage Loan repurchased or replaced by the
related Mortgage Loan Seller as contemplated by this Section 2.03 has been
deposited into the Certificate Account, and further, if applicable, upon receipt
of the Mortgage File for each Replacement Mortgage Loan (if any) to be
substituted for a Deleted Mortgage Loan, together with the certification
referred to in Section 2.03(e) from the party effecting the substitution, if
any, the Trustee shall (i) release or cause the release of the Mortgage File and
any Additional Collateral held by or on behalf of the Trustee for the Deleted
Mortgage Loan to the party effecting the repurchase/substitution or its designee
and (ii) execute and deliver such instruments of release, transfer and/or
assignment, in each case without recourse, as shall be provided to it and are
reasonably necessary to vest in the party effecting the repurchase/substitution
or its designee the ownership of the Deleted Mortgage Loan, and the Master
Servicer shall notify the applicable Mortgagors of the transfers of the Deleted
Mortgage Loan(s) and any Replacement Mortgage Loan(s). If the Mortgage related
to the Deleted Mortgage Loan has been recorded in the name of MERS or its
designee, the Master Servicer shall take all necessary action to reflect the
release of such Mortgage on the records of MERS. In connection with any such
repurchase or substitution by the related Mortgage Loan Seller, each of the
Master Servicer and the Special Servicer shall deliver to the party effecting
the repurchase/substitution or its designee any portion of the related Servicing
File, together with any Escrow Payments, Reserve Funds and Additional
Collateral, held by or on behalf of the Master Servicer or the Special Servicer,
as the case may be, with respect to the Deleted Mortgage Loan, in each case at
the expense of the party effecting the repurchase/substitution. The reasonable
"out-of-pocket" costs and expenses incurred by the Master Servicer, the Special
Servicer and/or the Trustee pursuant to this Section 2.03(g), shall be payable
to each of them, first, by the related Mortgage Loan Seller to the extent such
Mortgage Loan Seller was required to repurchase the affected Mortgage Loan, and
then as Servicing Advances in respect of the affected Mortgage Loan.
(h) The applicable Mortgage Loan Purchase and Sale Agreement
provides the sole remedy available to the Certificateholders, or the Trustee on
their behalf, respecting any Breach or Document Defect with respect to Mortgage
Loans sold by the related Mortgage Loan Seller. If the related Mortgage Loan
Seller defaults on its obligations to repurchase or replace any Mortgage Loan as
contemplated by this Section 2.03, the Master Servicer shall (and the Special
Servicer may) promptly notify the Trustee in writing, and the Trustee shall
notify the Certificateholders. Thereafter, the Master Servicer (with respect to
Performing Serviced Loans where the defaulting Mortgage Loan Seller is not an
Affiliate of the Master Servicer) and the Special Servicer (with respect to
Specially Serviced Loans and with respect to Performing Serviced Loans where the
defaulting Mortgage Loan Seller is an Affiliate of the Master Servicer) shall
take such actions on behalf of the Trust with respect to the enforcement of such
repurchase/substitution obligations (and if the Master Servicer is notified or
otherwise becomes aware of a default on the part of such Mortgage Loan Seller in
respect of its obligations under Section 4 of the related Mortgage Loan Purchase
and Sale Agreement, the Master Servicer shall also take such actions on behalf
of the Trust with respect to the enforcement of such obligations of such
Mortgage Loan Seller), including the institution and prosecution of appropriate
legal proceedings, as the Master Servicer or the Special Servicer shall
determine are in the best interests of the Certificateholders (taken as a
collective whole). Any and all reasonable "out-of-pocket" costs and expenses
incurred by the Master Servicer, the Special Servicer and/or the Trustee
pursuant to this Section 2.03(h), including reasonable attorney fees and
expenses to the extent not collected from such Mortgage Loan Seller because such
Mortgage Loan Seller either failed, or was not required, to cure the subject
actual or alleged Breach or Document Defect or repurchase/replace the affected
related Mortgage Loan, shall constitute Servicing Advances in respect of the
affected Mortgage Loan.
Without limiting the Trustee's duties under this Section 2.03, the
Trustee irrevocably designates the Special Servicer, with respect to the
Specially Serviced Loans, and the Master Servicer, with respect to Performing
Serviced Loans, for the benefit of Certificateholders to use reasonable efforts
to enforce, after notice to the Trustee, any of the obligations of a Mortgage
Loan Seller under the related Mortgage Loan Purchase and Sale Agreement. Such
enforcement including, without limitation, the legal prosecution of claims,
shall be carried out in such form, to such extent and at such time as the
Special Servicer or Master Servicer, as the case may be, shall reasonably
determine is in the best interests of the Certificateholders (taken as a
collective whole). All out-of-pocket expenses (including attorney's fees and
litigation costs and expenses) incurred by the Special Servicer or Master
Servicer, as the case may be, in carrying out its obligations hereunder shall be
reimbursable to the Special Servicer or Master Servicer, as the case may be, and
constitute Additional Trust Fund Expenses. The Trustee shall upon request
promptly furnish or cause to be furnished to the Special Servicer or Master
Servicer, as the case may be, limited powers of attorney and other documents
necessary, delivered to it by the Special Servicer or Master Servicer, as the
case may be, for execution, or appropriate to enable the Special Servicer or
Master Servicer, as the case may be, to carry out such enforcement duties
subject to Section 3.01(c).
(i) In the event that pursuant to a settlement agreed to by a
Mortgage Loan Seller and the Special Servicer on behalf of the Trust (it being
understood that the provisions of this Section 2.03(i) shall not constitute a
waiver of the Trust's rights under Section 2.03(h) unless the Special Servicer,
on behalf of the Trust, has agreed to accept a loss of value payment in lieu of
the Trust's rights under Section 2.03(h)) or a judicial order, such Mortgage
Loan Seller makes a cash payment, either as a cure of a Material Breach or a
Material Defect, or in lieu of a repurchase of a Mortgage Loan on which a
Material Breach or a Material Defect exists or is alleged to exist (each such
payment, a "Loss of Value Payment") with respect to such Mortgage Loan, the
amount of each such Loss of Value Payment shall be determined either (i) by
mutual agreement of the Special Servicer on behalf of the Trust with respect to
such Material Breach or Material Defect, as the case may be, and such Mortgage
Loan Seller or (ii) by judicial decision. Provided that such Loss of Value
Payment is made, the Loss of Value Payment shall serve as the sole remedy
available to the Certificateholders and the Trustee on their behalf regarding
any such Material Breach or Material Defect in lieu of any obligation of the
related Mortgage Loan Seller to otherwise cure such Material Breach or Material
Defect or repurchase the Defective Mortgage Loan based on such Material Breach
or Material Defect under any circumstances. In the event there is a Loss of
Value Payment made by a Mortgage Loan Seller in accordance with this Section
2.03(i), the amount of such Loss of Value Payment shall be deposited into the
Loss of Value Reserve Fund to be applied in accordance with Section 3.05(g).
Section 2.04 Representations and Warranties of the Depositor.
(a) The Depositor hereby represents and warrants to each of the
other parties to this Agreement and for the benefit of the Certificateholders
and, in the case of a Whole Loan, the holder of the related Companion Loan, as
of the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the Depositor,
and the performance and compliance with the terms of this Agreement by the
Depositor, do not violate the Depositor's certificate of incorporation or
bylaws or constitute a default (or an event that, with notice or lapse of
time, or both, would constitute a default) under, or result in the breach
of, any material agreement or other instrument to which it is a party or
that is applicable to it or any of its assets.
(iii) The Depositor has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Depositor, enforceable against the Depositor
in accordance with the terms hereof, except as such enforcement may be
limited by (A) applicable bankruptcy, insolvency, receivership,
reorganization, liquidation, fraudulent transfer, moratorium and other
laws affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Depositor is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement do not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Depositor's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Depositor to perform its obligations under this Agreement or the
financial condition of the Depositor.
(vi) The transfer of the Mortgage Loans to the Trustee as
contemplated herein requires no regulatory approval, other than any such
approvals as have been obtained, and is not subject to any bulk transfer
or similar law in effect in any applicable jurisdiction.
(vii) No litigation is pending or, to the best of the Depositor's
knowledge, threatened against the Depositor that would prohibit the
Depositor from entering into this Agreement or, in the Depositor's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Depositor to perform its obligations
under this Agreement or the financial condition of the Depositor.
(viii) Immediately prior to the transfer of the Mortgage Loans by
the Depositor to the Trustee hereunder, the Depositor had good and
marketable title to, and was the sole owner of, each such Mortgage Loan,
free and clear of any and all liens, encumbrances and other interests on,
in or to such Mortgage Loan.
(ix) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Depositor of the transactions
contemplated herein, except for those consents, approvals, authorizations
and orders that previously have been obtained and those filings and
registrations that previously have been completed, and except for those
filings and recordings of loan documents and assignments thereof that are
contemplated by this Agreement to be completed after the Closing Date.
(x) The Depositor has been solvent at all relevant times prior to,
and will not be rendered insolvent by, its transfer of the Mortgage Loans
to the Trustee, pursuant to Section 2.01(b).
(xi) After giving effect to its transfer of the Mortgage Loans to
the Trustee, pursuant to Section 2.01(b), the value of the Depositor's
assets, either taken at their present fair saleable value or at fair
valuation, will exceed the amount of the Depositor's debts and
obligations, including contingent and unliquidated debts and obligations
of the Depositor, and the Depositor will not be left with unreasonably
small assets or capital with which to engage in and conduct its business.
(xii) The Depositor does not intend to, and does not believe that it
will, incur debts or obligations beyond its ability to pay such debts and
obligations as they mature.
(xiii) No proceedings looking toward merger, liquidation,
dissolution or bankruptcy of the Depositor are pending or contemplated.
(xiv) Immediately prior to the transfer of the Mortgage Loans to the
Trustee for the benefit of the Certificateholders pursuant to this
Agreement, the Depositor had such right, title and interest in and to each
Mortgage Loan as was transferred to it by the related Mortgage Loan Seller
pursuant to the related Mortgage Loan Purchase and Sale Agreement. The
Depositor has not transferred any of its right, title and interest in and
to the Mortgage Loans to any Person other than the Trustee.
(xv) Except for any actions that are the express responsibility of
another party hereunder or under any Mortgage Loan Purchase and Sale
Agreement, and further except for actions that the Depositor is expressly
permitted to complete subsequent to the Closing Date, the Depositor has
taken all actions required under applicable law to effectuate the transfer
of all of its right, title and interest in and to the Mortgage Loans by
the Depositor to the Trustee.
(b) Upon discovery by any of the parties hereto of a breach of any
of the foregoing representations and warranties that materially and adversely
affects the interests of the Certificateholders or any party hereto, the party
discovering such breach shall give prompt written notice to each of the other
parties hereto.
Section 2.05 Representations and Warranties of the Master Servicer.
(a) The Master Servicer hereby represents and warrants to the other
parties hereto and for the benefit of the Certificateholders and, in the case of
a Whole Loan, the related Companion Loan Holder, as of the Closing Date, that:
(i) The Master Servicer is duly organized, validly existing and in
good standing as a national banking association under the laws of the
United States of America, and the Master Servicer is in compliance with
the laws of each jurisdiction in which any Mortgaged Property is located
to the extent necessary to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Master
Servicer, and the performance and compliance with the terms of this
Agreement by the Master Servicer, do not violate the Master Servicer's
organizational documents or constitute a default (or an event that, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other instrument to
which it is a party or that is applicable to it or any of its assets,
which default or breach, in the Master Servicer's good faith and
reasonable judgment, is likely to materially and adversely affect the
ability of the Master Servicer to perform its obligations under this
Agreement.
(iii) The Master Servicer has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Master Servicer, enforceable against the
Master Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, conservatorship, receivership,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally, and (B) general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law.
(v) The Master Servicer is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement do not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Master Servicer's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Master Servicer to perform its obligations under this
Agreement or the financial condition of the Master Servicer.
(vi) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer that would
prohibit the Master Servicer from entering into this Agreement or, in the
Master Servicer's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Master Servicer
to perform its obligations under this Agreement or the financial condition
of the Master Servicer.
(vii) Each officer or employee of the Master Servicer that has
responsibilities concerning the servicing and administration of the
Serviced Loans is covered by errors and omissions insurance in the amounts
and with the coverage required by Section 3.07(c). None of the Master
Servicer or any of its officers or employees that is involved in the
servicing or administration of the Serviced Loans has been refused such
coverage or insurance.
(viii) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Master Servicer of the
transactions contemplated herein, except for those consents, approvals,
authorizations and orders that previously have been obtained and those
filings and registrations that previously have been completed.
(ix) The Master Servicer has examined each of the Sub-Servicing
Agreements entered into by the Master Servicer that will be in effect as
of the Closing Date with respect to the Serviced Loans, and each such
Sub-Servicing Agreement complies with the requirements of Section 3.22(a)
in all material respects.
(b) The representations and warranties of the Master Servicer set
forth in Section 2.05(a) shall survive the execution and delivery of this
Agreement and inure to the benefit of the Persons for whose benefit they were
made for so long as the Trust remains in existence. Upon discovery by any of the
parties hereto of a breach of any of such representations and warranties that
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
(c) Each successor Master Servicer (if any) shall be deemed to have
made, as of the date of its succession, each of the representations set forth in
Section 2.05(a), subject to such appropriate modifications to the representation
and warranty set forth in Section 2.05(a)(i) to accurately reflect such
successor's jurisdiction of organization and whether it is a corporation,
partnership, bank, association or other type of organization.
Section 2.06 Representations and Warranties of the Special Servicer.
(a) The Special Servicer hereby represents and warrants to the other
parties hereto and for the benefit of the Certificateholders and, in the case of
a Whole Loan, the related Companion Loan Holder, as of the Closing Date, that:
(i) The Special Servicer is duly organized, validly existing and in
good standing as a corporation under the laws of the State of Florida, and
the Special Servicer is in compliance with the laws of each jurisdiction
in which any Mortgaged Property is located to the extent necessary to
perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Special
Servicer, and the performance and compliance with the terms of this
Agreement by the Special Servicer, do not violate the Special Servicer's
organizational documents or constitute a default (or an event that, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other instrument to
which it is a party or that is applicable to it or any of its assets,
which default, in the Special Servicer's reasonable judgment, is likely to
materially and adversely effect either the ability of the Special Servicer
to perform its obligations under this Agreement or the financial condition
of the Special Servicer.
(iii) The Special Servicer has the full corporate power and
authority to enter into and consummate all transactions contemplated by
this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Special Servicer, enforceable against the
Special Servicer in accordance with the terms hereof, except as such
enforcement may be limited by (A) applicable bankruptcy, receivership,
insolvency, reorganization, liquidation, fraudulent transfer, moratorium
and other laws affecting the enforcement of creditors' rights generally,
and (B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(v) The Special Servicer is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement do not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Special Servicer's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Special Servicer to perform its obligations under this
Agreement or the financial condition of the Special Servicer.
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened against the Special Servicer, the outcome
of which in the Special Servicer's reasonable judgment, is likely to
materially and adversely affect either the ability of the Special Servicer
to perform its obligations under this Agreement or the financial condition
of the Special Servicer.
(vii) Each officer or employee of the Special Servicer that has
responsibilities concerning the servicing and administration of the
Serviced Loans is covered by errors and omissions insurance in the amounts
and with the coverage required by Section 3.07(c).
(viii) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Special Servicer of the
transactions contemplated herein, except for those consents, approvals,
authorizations and orders that previously have been obtained and those
filings and registrations that previously have been completed.
(b) The representations and warranties of the Special Servicer set
forth in Section 2.06(a) shall survive the execution and delivery of this
Agreement and inure to the benefit of the Persons for whose benefit they were
made for so long as the Trust remains in existence. Upon discovery by any of the
parties hereto of a breach of any of such representations and warranties that
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
(c) Each successor Special Servicer (if any) shall be deemed to have
made, as of the date of its succession, each of the representations set forth in
Section 2.06(a), subject to such appropriate modifications to the representation
and warranty set forth in Section 2.06(a)(i) to accurately reflect such
successor's jurisdiction of organization and whether it is a corporation,
partnership, bank, association or other type of organization.
Section 2.07 Representations and Warranties of the Trustee and the
REMIC Administrator.
(a) Xxxxx Fargo Bank, N.A., both in its capacity as Trustee and in
its capacity as REMIC Administrator (the "Bank"), hereby represents and warrants
to the other parties hereto and for the benefit of the Certificateholders and,
in the case of a Whole Loan, the related Companion Loan Holder, as of the
Closing Date, that:
(i) The Bank is a national bank duly organized, validly existing and
in good standing under the laws of the United States and is, shall be or,
if necessary, shall appoint a co-trustee that is, in compliance with the
laws of each jurisdiction in which any Mortgaged Property is located to
the extent necessary to ensure the enforceability of each Loan and to
perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Bank, and
the performance and compliance with the terms of this Agreement by the
Bank, do not violate the Bank's organizational documents or constitute a
default (or an event that, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or that is applicable
to it or any of its assets, which default, in the Bank's good faith and
reasonable judgment, is likely to materially and adversely affect either
the ability of the Bank to perform its obligations under this Agreement or
the financial condition of the Bank.
(iii) The Bank has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Bank, enforceable against the Bank in
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Bank is not in violation of, and its execution and delivery
of this Agreement and its performance and compliance with the terms of
this Agreement do not constitute a violation of, any law, any order or
decree of any court or arbiter, or any order, regulation or demand of any
federal, state or local governmental or regulatory authority, which
violation, in the Bank's good faith and reasonable judgment, is likely to
affect materially and adversely either the ability of the Bank to perform
its obligations under this Agreement or the financial condition of the
Bank.
(vi) No litigation is pending or, to the best of the Bank's
knowledge, threatened against the Bank that would prohibit the Bank from
entering into this Agreement or, in the Bank's good faith and reasonable
judgment, is likely to materially and adversely affect either the ability
of the Bank to perform its obligations under this Agreement or the
financial condition of the Bank.
(vii) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Bank of the transactions
contemplated herein, except for those consents, approvals, authorizations
and orders that previously have been obtained and those filings and
registrations that previously have been completed.
(b) The representations and warranties of the Bank set forth in
Section 2.07(a) shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust remains in existence. Upon discovery by any of the parties
hereto of a breach of any of such representations and warranties that materially
and adversely affects the interests of the Certificateholders or any party
hereto, the party discovering such breach shall give prompt written notice to
each of the other parties hereto.
(c) Each successor Trustee or REMIC Administrator (if any and
regardless of whether the Trustee and the REMIC Administrator are different
Persons) shall be deemed to have made, as of the date of its succession, each of
the representations set forth in Section 2.07(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 2.07(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization. In any such case, the term "Bank" shall be deemed to mean such
successor Trustee or the REMIC Administrator, as appropriate.
Section 2.08 [RESERVED].
Section 2.09 Issuance of the Class R-I Certificates; Creation of the
REMIC I Regular Interests.
Concurrently with the assignment to the Trustee of the assets
included in REMIC I, and in exchange therefor, at the direction of the
Depositor, the REMIC I Regular Interests have been issued hereunder and the
Trustee has executed, authenticated and delivered to or upon the order of the
Depositor, in exchange for such assets, the Class R-I Certificates in authorized
denominations. The Class R-I Certificates, together with the REMIC I Regular
Interests, constitute the entire beneficial ownership of REMIC I. The rights of
the Class R-I Certificateholders and the Trustee for the benefit of REMIC II to
receive distributions from the proceeds of REMIC I in respect of the Class R-I
Certificates and the REMIC I Regular Interests, respectively, shall be as set
forth in this Agreement.
Section 2.10 Conveyance of REMIC I Regular Interests; Acceptance of
REMIC II by the Trustee.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery hereof, does hereby assign without recourse all the
right, title and interest of the Depositor in and to the REMIC I Regular
Interests to the Trustee for the benefit of the Holders of the REMIC II
Certificates and the Class A-2FL and Class A-JFL Regular Interests. The Trustee
acknowledges the assignment to it of the REMIC I Regular Interests and declares
that it holds and will hold the same in trust for the exclusive use and benefit
of all present and future Holders of the REMIC II Certificates and the Class
A-2FL and Class A-JFL Regular Interests.
Section 2.11 Issuance of the REMIC II Certificates and the Class
A-2FL and Class A-JFL Regular Interests.
Concurrently with the assignment to the Trustee of the REMIC I
Regular Interests, and in exchange therefor, at the direction of the Depositor,
the Trustee has executed, authenticated and delivered to or upon the order of
the Depositor, the REMIC II Certificates in authorized denominations and has
issued the Class A-2FL and Class A-JFL Regular Interests. The interests
evidenced by the REMIC II Certificates and the Class A-2FL and Class A-JFL
Regular Interests constitute the entire beneficial ownership of REMIC II. The
rights of the Holders of the REMIC II Certificates and the Class A-2FL and Class
A-JFL Regular Interests to receive distributions from the proceeds of REMIC II
shall be as set forth in this Agreement.
Section 2.12 Loss of Value Reserve Fund Provisions.
It is the intention of the parties hereto that any Loss of Value
Payments received by the Trust pursuant to Section 2.03(i), together with the
account(s) and/or sub-account(s) in which such amounts are to be held pursuant
to Section 3.04(g), shall collectively constitute an "outside reserve fund" for
federal income tax purposes designated as the "Loss of Value Reserve Fund" and
not an asset of any REMIC formed hereunder or the Grantor Trusts. Furthermore,
for all federal tax purposes, the REMIC Administrator and the Special Servicer
shall treat any amounts transferred by a REMIC to the Loss of Value Reserve Fund
as amounts distributed by such REMIC to the Mortgage Loan Seller as beneficial
owner of the Loss of Value Reserve Fund. The Mortgage Loan Seller will be the
beneficial owner of the Loss of Value Reserve Fund for all federal income tax
purposes, and shall be taxable on all income earned thereon. The Trustee, by
execution and delivery hereof, acknowledges the assignment to it of the assets
consisting of the Loss of Value Reserve Fund, including the amounts held
therein, and declares that it or the REMIC Administrator on its behalf holds and
will hold such assets, through the Special Servicer, in accordance with Section
3.04(g), in trust and for the benefit of the Certificateholders, as their
interests may appear.
Section 2.13 Designation of Grantor Trusts.
(a) The Depositor, as of the Closing Date, and concurrently with the
execution and delivery hereof, does hereby assign without recourse all the
right, title and interest of the Depositor in and to the Excess Interest to the
Trustee for the benefit of the Holders of the Class V Certificates. The Trustee
acknowledges the assignment to it of the Excess Interest and declares that it
holds and will hold the same in trust for the exclusive use and benefit of all
present and future Holders of the Class V Certificates. Concurrently with the
assignment to the Trustee of the Excess Interest, and in exchange therefor, at
the direction of the Depositor, the Trustee has executed, authenticated and
delivered to or upon the order of the Depositor, the Class V Certificates in
authorized denominations. The Class V Certificates are hereby designated as
undivided beneficial interests in the portion of the Trust Fund consisting of
Excess Interest and the Excess Interest Distribution Account (the "Excess
Interest Grantor Trust"), which portion shall be treated as a "grantor trust"
within the meaning of subpart E, Part I of subchapter J of the Code.
(b) The Depositor, as of the Closing Date, and concurrently with the
execution and delivery hereof, does hereby assign without recourse all the
right, title and interest of the Depositor in and to the Class A-2FL and Class
A-JFL Regular Interests to the Swap Trustee for the benefit of the Holders of
the Class A-2FL and Class A-JFL Certificates, respectively, and the Class A-2FL
Swap Counterparty and Class A-JFL Swap Counterparty, respectively. The Swap
Trustee acknowledges the assignment to it of the Class A-2FL and Class A-JFL
Regular Interests and declares that it holds and will hold the same in trust for
the exclusive use and benefit of all present and future Holders of the Class
A-2FL and Class A-JFL Certificates, respectively. The Swap Trustee is hereby
directed to enter into the Class A-2FL Swap Contract and Class A-JFL Swap
Contract on or prior to the Closing Date. Concurrently with the assignment to
the Swap Trustee of the Class A-2FL and Class A-JFL Regular Interests, and in
exchange therefor and for the interest in the related Swap Contract, at the
direction of the Depositor, the Swap Trustee has executed, authenticated and
delivered to or upon the order of the Depositor, the Class A-2FL and Class A-JFL
Certificates, respectively, in authorized denominations. The Class A-2FL
Certificates are hereby designated as undivided beneficial interests in the
segregated pool of assets consisting of the Class A-2FL Regular Interest, the
Class A-2FL Swap Contract and the Class A-2FL Floating Rate Account (the "Class
A-2FL Grantor Trust"), which shall be treated as a "grantor trust" within the
meaning of subpart E, Part I of subchapter J of the Code. The Class A-JFL
Certificates are hereby designated as undivided beneficial interests in their
respective portion of the Trust Fund consisting of the Class A-JFL Regular
Interest, the Class A-JFL Swap Contract and the Class A-JFL Floating Rate
Account (the "Class A-JFL Grantor Trust"), which such portions shall be treated
as a "grantor trust" within the meaning of subpart E, Part I of subchapter J of
the Code.
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
Section 3.01 Administration of the Serviced Loans.
(a) Each of the Master Servicer and the Special Servicer shall
service and administer the Serviced Loans and any REO Properties that it is
obligated to service and administer pursuant to this Agreement on behalf of the
Trustee, and in the best interests and for the benefit of the Certificateholders
and, in the case of a Serviced Whole Loan, on behalf of the related Companion
Loan Holder, as a collective whole (and, in the case of a Serviced Whole Loan
that is an A/B Whole Loan, taking into account the subordination of the A/B
Companion Loan) in accordance with any and all applicable laws, the terms of
this Agreement, the terms of the respective Serviced Loans and, in the case of a
Whole Loan, the related Intercreditor Agreement, and, to the extent consistent
with the foregoing, in accordance with the Servicing Standard. Without limiting
the foregoing, and subject to Section 3.21, (i) the Master Servicer shall
service and administer all Performing Serviced Loans, and (ii) the Special
Servicer shall service and administer (x) each Serviced Loan (other than a
Corrected Serviced Loan) as to which a Servicing Transfer Event has occurred and
is continuing, and (y) each REO Property; provided, however, the Master Servicer
shall continue to collect information and prepare all reports to the Trustee
required hereunder with respect to any Specially Serviced Loans and REO
Properties (and the related REO Loans), and further to render such incidental
services with respect to any Specially Serviced Loans and REO Properties as are
specifically provided for herein; and provided, further, the Special Servicer
shall render such incidental services with respect to Performing Serviced Loans
as are specifically provided for herein. The Master Servicer shall not, on
behalf of the Trust, obtain title to a Mortgaged Property.
(b) Subject to Section 3.01(a) the Master Servicer and the Special
Servicer shall each have full power and authority, acting alone or through
Sub-Servicers, to do or cause to be done any and all things in connection with
such servicing and administration that it may deem necessary or desirable.
Without limiting the generality of the foregoing, each of the Master Servicer
(with respect to Performing Serviced Loans and Corrected Serviced Loans) and the
Special Servicer (with respect to Specially Serviced Loans and REO Loans), in
its own name or in the name of the Trustee, is hereby authorized and empowered
by the Trustee to execute and deliver, on behalf of the Certificateholders and,
if a Whole Loan is affected, the related Companion Loan Holder, the Trustee or
any of them: (i) any and all financing statements, control agreements,
continuation statements and other documents or instruments necessary to perfect
or maintain the lien created by any Mortgage or other security document in the
related Mortgage File on the related Mortgaged Property and other related
collateral; (ii) any and all instruments of satisfaction or cancellation, or of
partial or full release or discharge, and all other comparable instruments; and
(iii) subject to Sections 3.08 and 3.20, any and all assumptions, modifications,
waivers, substitutions, extensions, amendments and consents. Subject to Section
3.10, the Trustee shall, at the written request of a Servicing Officer of the
Master Servicer or the Special Servicer, furnish, or cause to be so furnished,
to the Master Servicer or the Special Servicer, as appropriate, any limited
powers of attorney and other documents (each of which shall be prepared by the
Master Servicer or the Special Servicer, as applicable) necessary or appropriate
to enable it to carry out its servicing and administrative duties hereunder;
provided, that the Trustee shall not be held liable for any misuse of any such
power of attorney by the Master Servicer or the Special Servicer and the Trustee
will be indemnified pursuant to, and subject to the limitations set forth in,
Section 8.05 for any losses or expenses it incurs due to the Master Servicer's
use of such power of attorney.
(c) Notwithstanding anything contained herein to the contrary,
neither the Master Servicer nor the Special Servicer shall without the Trustee's
written consent: (i) except as provided in Section 3.32, initiate any action,
suit or proceeding solely under the Trustee's name without indicating the Master
Servicer's or such Special Servicer's, as applicable, representative capacity,
or (ii) take any action with the intent to cause, and that actually does cause,
the Trustee to be registered to do business in any state.
The Master Servicer and/or the Special Servicer shall indemnify the
Trustee for any and all costs, liabilities and expenses incurred by the Trustee
in connection with the negligent or willful misuse of such powers of attorney by
the Master Servicer or the Special Servicer, as applicable.
(d) The relationship of each of the Master Servicer and the Special
Servicer to the Trustee and, unless they are the same Person, each other under
this Agreement is intended by the parties to this Agreement to be that of an
independent contractor and not that of a joint venturer, partner or agent.
(e) The parties hereto acknowledge that each of the Beacon Seattle &
DC Portfolio Whole Loan, the One Park Avenue Pari Passu Whole Loan, the 000
Xxxxxxxxx Xxxxxx Pari Passu Whole Loan and the Parkway Chevrolet-Tomball A/B
Whole Loan is subject to the terms and conditions of the related Intercreditor
Agreement. The parties hereto further recognize (i) the respective rights and
obligations of the "Holders" under the Beacon Seattle & DC Portfolio
Intercreditor Agreements, including with respect to the allocation of
collections on or in respect of the Beacon Seattle & DC Portfolio Whole Loan and
the making of payments to the "Holders" in accordance with Sections 3 and 8 of
the Beacon Seattle & DC Portfolio Pari Passu Intercreditor Agreements and
Sections 2 and 3 of the Beacon Seattle & DC Portfolio A/B Intercreditor
Agreements, (ii) the respective rights and obligations of the "Holders" under
the One Park Avenue Intercreditor Agreement, including with respect to the
allocation of collections on or in respect of One Park Avenue Pari Passu Whole
Loan and the making of payments to the "Holders" in accordance with Section 1(b)
of the One Park Avenue Intercreditor Agreement, (iii) the respective rights and
obligations of the "Holders" under the 000 Xxxxxxxxx Xxxxxx Intercreditor
Agreement, including with respect to the allocation of collections on or in
respect of the 000 Xxxxxxxxx Xxxxxx Pari Passu Whole Loan and the making of
payments to the "Holders" in accordance with Section 1(b) of the 000 Xxxxxxxxx
Xxxxxx Intercreditor Agreement and (iv) the respective rights and obligations of
the "Holders" under the Parkway Chevrolet-Tomball Intercreditor Agreement,
including with respect to the allocation of collections on or in respect of
Parkway Chevrolet-Tomball Pari Passu Whole Loan and the making of payments to
the "Holders" in accordance with Section (4) of the Parkway Chevrolet-Tomball
Intercreditor Agreement.
Unless otherwise expressly provided for in the related Intercreditor
Agreement, if, at such time as a Mortgage Loan included in a Whole Loan shall no
longer be part of the Trust Fund, a separate servicing agreement with respect to
such Whole Loan has not been entered into, then, until such time as a separate
servicing agreement is entered into and any required rating confirmation is
obtained, and notwithstanding that such Mortgage Loan is no longer part of the
Trust Fund, the Master Servicer and, if applicable, the Special Servicer shall
continue to service such Whole Loan or any related REO Property, as the case may
be, under this Agreement as if it were a separate servicing agreement, for the
benefit of the parties under the related Intercreditor Agreement, with: (i) such
Whole Loan and the related Mortgaged Property constituting the sole assets
thereunder; (ii) references to the "Trustee", "Trust" and "Certificateholders"
(or any sub-group thereof) being construed to refer to the new "Note A Holder"
or its equivalent under the related Intercreditor Agreement, as applicable and
(iii) references to the "Directing Certificateholder" or its equivalent being
construed to refer to the "Controlling Holder", "Lead Lender" or its respective
equivalent under the related Intercreditor Agreement, as applicable; provided,
however, from and after the date that such Mortgage Loan is no longer part of
the Trust Fund and until the servicing and administration of such Whole Loan is
to be governed by a separate servicing agreement and not by this Agreement, and
notwithstanding any other provision hereof: (i) no P&I Advances shall be made by
the Master Servicer, Special Servicer or the Trustee in respect of such Mortgage
Loan and (ii) the holders of such Whole Loan shall be solely responsible for all
fees, costs, expenses, liabilities, indemnities and other amounts payable or
reimbursable to any Person in respect of such Mortgage Loan and any related REO
Property and in no event shall any such fees, costs, expenses, liabilities,
indemnities, or other amounts be payable out of the Mortgage Pool or any
collections relating thereto (except to the extent accrued and unpaid while such
Mortgage Loan was included as part of the Trust Fund). With, respect to a Whole
Loan, subject to any express provision contained in the related Intercreditor
Agreement to the contrary, nothing herein shall be deemed to override the
provisions of such Intercreditor Agreement with respect to the rights of the
Companion Loan Holder(s) thereunder. With respect to the servicing and
administration duties and obligations with respect to a Whole Loan, in the event
of any inconsistency between the provisions of an Intercreditor Agreement and
the provisions of this Agreement, or as to any matter on which such
Intercreditor Agreement is silent or makes reference to this Agreement, this
Agreement shall govern.
Notwithstanding anything herein to the contrary, the parties hereto
acknowledge and agree that the Master Servicer's obligations and
responsibilities hereunder and the Master Servicer's authority with respect to
the Beacon Seattle & DC Portfolio Mortgage Loan are limited by and subject to
the terms of the Beacon Seattle & DC Portfolio Intercreditor Agreement and the
rights of the Beacon Seattle & DC Portfolio Master Servicer and the Beacon
Seattle & DC Portfolio Special Servicer with respect thereto under the Beacon
Seattle & DC Portfolio Pooling Agreement. The Master Servicer shall use
reasonable best efforts consistent with the Servicing Standard to enforce the
rights of the Trustee (as holder of the Beacon Seattle & DC Portfolio Mortgage
Loan) under the Beacon Seattle & DC Portfolio Intercreditor Agreement and the
Beacon Seattle & DC Portfolio Pooling Agreement. The Master Servicer shall take
such actions as it shall deem reasonably necessary to facilitate the servicing
of the Beacon Seattle & DC Portfolio Mortgage Loan by the Beacon Seattle & DC
Portfolio Master Servicer and the Beacon Seattle & DC Portfolio Special Servicer
including, but not limited to, delivering appropriate Requests for Release to
the Trustee and Custodian (if any) to deliver any portion of the related
Mortgage File to the Beacon Seattle & DC Portfolio Master Servicer or Beacon
Seattle & DC Portfolio Special Servicer under the Beacon Seattle & DC Portfolio
Pooling Agreement. The Trustee, on behalf of the Certificateholders, hereby
assumes the obligations of the "Beacon Seattle & DC Portfolio Note A-4 Holder"
under the Beacon Seattle & DC Portfolio Intercreditor Agreement (other than with
respect to the representations and warranties of such Beacon Seattle & DC
Portfolio Note A-4 Holder); provided that the Master Servicer, on behalf of the
Trustee, will perform any servicing-related obligations assigned therein to such
Beacon Seattle & DC Portfolio Note A-4 Holder.
The parties hereto acknowledge that the Beacon Seattle & DC
Portfolio Mortgage Loan is subject to the terms and conditions of the Beacon
Seattle & DC Portfolio Intercreditor Agreement and further acknowledge that,
pursuant to the Beacon Seattle & DC Portfolio Intercreditor Agreement, (i) the
Beacon Seattle & DC Portfolio Mortgage Loan is to be serviced and administered
by the Beacon Seattle & DC Portfolio Master Servicer in accordance with the
Beacon Seattle & DC Portfolio Pooling Agreement, and (ii) in the event that (A)
the related Beacon Seattle & DC Portfolio Companion Loan is no longer part of
the trust fund established under the Beacon Seattle & DC Portfolio Pooling
Agreement and (B) the Beacon Seattle & DC Portfolio Mortgage Loan is included in
the Trust Fund, then, as set forth in the Beacon Seattle & DC Portfolio
Intercreditor Agreement, Beacon Seattle & DC Portfolio Mortgage Loan shall
continue to be serviced in accordance with the applicable provisions of the
Beacon Seattle & DC Portfolio Pooling Agreement, with each of the Beacon Seattle
& DC Portfolio Master Servicer and the Beacon Seattle & DC Portfolio Special
Servicer continuing to act in their respective capacities thereunder (or by such
successor master servicer or special servicer as meets the requirements of the
Beacon Seattle & DC Portfolio Pooling Agreement) until such time as a new
servicing agreement has been agreed to by the parties to the Beacon Seattle & DC
Portfolio Intercreditor Agreement in accordance with the provisions of such
agreement and confirmation has been obtained from the Rating Agencies that such
new servicing agreement would not result in a downgrade, qualification or
withdrawal of the then current ratings of any Class of Certificates or related
Companion Loan Securities then outstanding.
The parties hereto agree and acknowledge that, pursuant to the
Beacon Seattle & DC Portfolio Intercreditor Agreement, the Trust Fund shall be
responsible for a proportionate share of reimbursement for any Beacon Seattle &
DC Portfolio Nonrecoverable Servicing Advances (together with interest thereon,
as set forth in the Beacon Seattle & DC Portfolio Pooling Agreement) and any
Additional Trust Fund Expenses (as defined in the Beacon Seattle & DC Portfolio
Pooling Agreement) that relates exclusively to the servicing of the Beacon
Seattle & DC Portfolio Mortgage Loan. In this regard,
(i) if the Beacon Seattle & DC Portfolio Pooling Agreement permits
the Beacon Seattle & DC Portfolio Master Servicer, Beacon Seattle & DC
Portfolio Special Servicer or the Beacon Seattle & DC Portfolio Trustee to
seek reimbursement for such amounts out of general collections in the
trust fund created pursuant to the Beacon Seattle & DC Portfolio Pooling
Agreement, then the Master Servicer, on behalf of the Trust Fund, shall
reimburse such trust fund for the Trust Fund's proportionate share of such
amounts out of general collections in the Trust Fund; and
(ii) if the Beacon Seattle & DC Portfolio Pooling Agreement does not
permit such parties to seek reimbursement for such amounts out of general
collections in the trust fund created pursuant to the Beacon Seattle & DC
Portfolio Pooling Agreement, then the Master Servicer, on behalf of the
Trust Fund, shall reimburse such parties for the Trust Fund's
proportionate share of such amounts out of general collections in the
Trust Fund.
Any such amounts shall be reimbursed to such other trust fund out of
collections of principal and other amounts in the Certificate Account in the
same manner as a Nonrecoverable Advance, as set forth in Section 3.05(a).
Within 30 days of the Closing Date, the Master Servicer shall
deliver notice to the Beacon Seattle & DC Portfolio Master Servicer and the
Beacon Seattle & DC Portfolio Trustee of the issuance of the Certificates and
the securitization of the Beacon Seattle & DC Portfolio Mortgage Loan. Such
notice shall include contact information for the Master Servicer, the Special
Servicer, the Trustee and the Directing Certificateholder, as well as an
executed copy of this Agreement; provided, however, if the Master Servicer has
not itself received a final copy of this Agreement within 21 days of the Closing
Date, then the Master Servicer may forward a working draft and send a final copy
as promptly as practicable after its receipt of the same.
Notwithstanding anything herein to the contrary, the parties hereto
acknowledge and agree that the Master Servicer's obligations and
responsibilities hereunder and the Master Servicer's authority with respect to
the 000 Xxxxxxxxx Xxxxxx Pari Passu Mortgage Loan are limited by and subject to
the terms of the 000 Xxxxxxxxx Xxxxxx Intercreditor Agreement and the rights of
the 000 Xxxxxxxxx Xxxxxx Master Servicer and the 000 Xxxxxxxxx Xxxxxx Special
Servicer with respect thereto under the 000 Xxxxxxxxx Xxxxxx Pooling Agreement.
The Master Servicer shall use reasonable best efforts consistent with the
Servicing Standard to enforce the rights of the Trustee (as holder of the 000
Xxxxxxxxx Xxxxxx Pari Passu Mortgage Loan) under the 000 Xxxxxxxxx Xxxxxx
Intercreditor Agreement and the 000 Xxxxxxxxx Xxxxxx Pooling Agreement. The
Master Servicer shall take such actions as it shall deem reasonably necessary to
facilitate the servicing of the 000 Xxxxxxxxx Xxxxxx Pari Passu Mortgage Loan by
the 000 Xxxxxxxxx Xxxxxx Master Servicer and the 000 Xxxxxxxxx Xxxxxx Special
Servicer including, but not limited to, delivering appropriate Requests for
Release to the Trustee and Custodian (if any) to deliver any portion of the
related Mortgage File to the 000 Xxxxxxxxx Xxxxxx Master Servicer or 000
Xxxxxxxxx Xxxxxx Special Servicer under the 000 Xxxxxxxxx Xxxxxx Pooling
Agreement. The Trustee, on behalf of the Certificateholders, hereby assumes the
obligations of the "575 Lexington Avenue Note A-2 Holder" under the 000
Xxxxxxxxx Xxxxxx Intercreditor Agreement (other than with respect to the
representations and warranties of such 000 Xxxxxxxxx Xxxxxx Note A-2 Holder);
provided that the Master Servicer, on behalf of the Trustee, will perform any
servicing-related obligations assigned therein to such 000 Xxxxxxxxx Xxxxxx Note
A-2 Holder.
The parties hereto acknowledge that the 000 Xxxxxxxxx Xxxxxx Pari
Passu Mortgage Loan is subject to the terms and conditions of the 000 Xxxxxxxxx
Xxxxxx Intercreditor Agreement and further acknowledge that, pursuant to the 000
Xxxxxxxxx Xxxxxx Intercreditor Agreement, (i) the 000 Xxxxxxxxx Xxxxxx Pari
Passu Mortgage Loan is to be serviced and administered by the 000 Xxxxxxxxx
Xxxxxx Master Servicer in accordance with the 000 Xxxxxxxxx Xxxxxx Pooling
Agreement, and (ii) in the event that (A) the 000 Xxxxxxxxx Xxxxxx Pari Passu
Companion Loan is no longer part of the trust fund established under the 000
Xxxxxxxxx Xxxxxx Pooling Agreement and (B) the 000 Xxxxxxxxx Xxxxxx Pari Passu
Mortgage Loan is included in the Trust Fund, then, as set forth in the 000
Xxxxxxxxx Xxxxxx Intercreditor Agreement, the 000 Xxxxxxxxx Xxxxxx Pari Passu
Mortgage Loan shall continue to be serviced in accordance with the applicable
provisions of the 000 Xxxxxxxxx Xxxxxx Pooling Agreement, with each of the 000
Xxxxxxxxx Xxxxxx Master Servicer and the 000 Xxxxxxxxx Xxxxxx Special Servicer
continuing to act in their respective capacities thereunder (or by such
successor master servicer or special servicer as meets the requirements of the
000 Xxxxxxxxx Xxxxxx Pooling Agreement) until such time as a new servicing
agreement has been agreed to by the parties to the 000 Xxxxxxxxx Xxxxxx
Intercreditor Agreement in accordance with the provisions of such agreement and
confirmation has been obtained from the Rating Agencies that such new servicing
agreement would not result in a downgrade, qualification or withdrawal of the
then current ratings of any Class of Certificates or Class of related Companion
Loan Securities then outstanding.
The parties hereto agree and acknowledge that, pursuant to the 000
Xxxxxxxxx Xxxxxx Intercreditor Agreement, the Trust Fund shall be responsible
for a proportionate share of reimbursement for any 000 Xxxxxxxxx Xxxxxx
Nonrecoverable Servicing Advances (together with interest thereon, as set forth
in the 000 Xxxxxxxxx Xxxxxx Pooling Agreement) and any Additional Trust Fund
Expenses (as defined in the 000 Xxxxxxxxx Xxxxxx Pooling Agreement) that relates
exclusively to the servicing of the 000 Xxxxxxxxx Xxxxxx Pari Passu Mortgage
Loan. In this regard,
(i) if the 000 Xxxxxxxxx Xxxxxx Xxxxxxx Agreement permits the 000
Xxxxxxxxx Xxxxxx Master Servicer, the 000 Xxxxxxxxx Xxxxxx Special
Servicer or the 000 Xxxxxxxxx Xxxxxx Trustee to seek reimbursement for
such amounts out of general collections in the trust fund created pursuant
to the 000 Xxxxxxxxx Xxxxxx Pooling Agreement, then the Master Servicer,
on behalf of the Trust Fund, shall reimburse such trust fund for the Trust
Fund's proportionate share of such amounts out of general collections in
the Trust Fund; and
(ii) if the 000 Xxxxxxxxx Xxxxxx Pooling Agreement does not permit
such parties to seek reimbursement for such amounts out of general
collections in the trust fund created pursuant to the 000 Xxxxxxxxx Xxxxxx
Pooling Agreement, then the Master Servicer, on behalf of the Trust Fund,
shall reimburse such parties for the Trust Fund's proportionate share of
such amounts out of general collections in the Trust Fund.
Any such amounts shall be reimbursed to such other trust fund out of
collections of principal and other amounts in the Certificate Account in the
same manner as a Nonrecoverable Advance, as set forth in Section 3.05(a).
Within 30 days of the Closing Date, the Master Servicer shall
deliver notice to the 000 Xxxxxxxxx Xxxxxx Master Servicer and the 000 Xxxxxxxxx
Xxxxxx Trustee of the issuance of the Certificates and the securitization of the
000 Xxxxxxxxx Xxxxxx Pari Passu Mortgage Loan. Such notice shall include contact
information for the Master Servicer, the Special Servicer, the Trustee and the
Directing Certificateholder, as well as an executed copy of this Agreement;
provided, however, if the Master Servicer has not itself received a final copy
of this Agreement within 21 days of the Closing Date, then the Master Servicer
may forward a working draft and send a final copy as promptly as practicable
after its receipt of the same.
Section 3.02 Collection of Mortgage Loan Payments.
(a) The Master Servicer (with respect to Performing Serviced Loans)
and the Special Servicer (with respect to Specially Serviced Loans) shall
undertake reasonable efforts to collect all payments called for under the terms
and provisions of the Serviced Loans and shall follow such collection procedures
as are consistent with applicable law, the express terms of this Agreement and
the related loan documents and, to the extent consistent with the foregoing, the
Servicing Standard, provided that neither the Master Servicer nor the Special
Servicer shall, with respect to any ARD Loan after its Anticipated Repayment
Date, take any enforcement action with respect to the payment of Excess Interest
(other than the making of requests for its collection), unless (i) the taking of
an enforcement action with respect to the payment of other amounts due under
such Serviced Loan is, in the good faith and reasonable judgment of the Special
Servicer, and without regard to such Excess Interest, also necessary,
appropriate and consistent with the Servicing Standard or (ii) all other amounts
due under such Loan have been paid, the payment of such Excess Interest has not
been forgiven in accordance with Section 3.20 and, in the good faith and
reasonable judgment of the Special Servicer, the Liquidation Proceeds expected
to be recovered in connection with such enforcement action will cover the
anticipated costs of such enforcement action and, if applicable, any associated
Advance Interest. Consistent with the foregoing, the Special Servicer (as to
Specially Serviced Loans) may waive any Default Charges in connection with any
specific delinquent payment on a Serviced Loan it is obligated to service
hereunder. Consistent with the foregoing and in each case subject to the
Servicing Standard, the Master Servicer (or if applicable a Sub-Servicer) may
grant a one time waiver of Default Charges in connection with a late payment,
provided that for any waiver thereafter of Default Charges in connection with a
Serviced Loan that is 30 days or more past due, and with respect to which
Advances, Advance Interest or Additional Trust Fund Expenses have been incurred
and remain unreimbursed to the Trust, the Master Servicer must obtain the
consent of the Directing Certificateholder before granting such waiver subject
to the obligation of the Master Servicer to act in accordance with applicable
law and the Servicing Standard. The Directing Certificateholder's consent shall
be deemed granted if it has not responded in writing (which may be via fax or
e-mail) within ten Business Days of its receipt of such request.
(b) (i) At least 90 days prior to the maturity date of each Balloon
Loan that is included in the Trust Fund, the Master Servicer shall send a notice
to the related Mortgagor of such maturity date (with a copy to be sent to the
Special Servicer) and shall request written confirmation that the Balloon
Payment will be paid by such maturity date.
(ii) Within 60 days after the Closing Date (or within such shorter
period as may be required by the applicable Letter of Credit), the Master
Servicer shall notify each provider of a Letter of Credit for any Serviced
Loan that the Master Servicer or the Special Servicer, on behalf of the
Trustee for the benefit of the Certificateholders, shall be the
beneficiary under each such Letter of Credit. The Master Servicer shall
maintain and execute each such Letter of Credit, if applicable, in
accordance with the related loan documents.
(iii) Within 60 days after the later of (A) the Closing Date as to
each Serviced Loan that is secured by the interest of the related
Mortgagor under a Ground Lease (or within such shorter period as may be
required by the applicable Ground Lease) and (B) the Master Servicer's
receipt of a copy of the related Ground Lease, the Master Servicer shall
notify the related ground lessor of the transfer of such Mortgage Loan to
the Trust pursuant to this Agreement and inform such ground lessor that
any notices of default under the related Ground Lease should thereafter be
forwarded to the Master Servicer.
All amounts received by the Trust with respect to a Whole Loan shall
be applied to amounts due and owing thereunder (including for principal and
accrued and unpaid interest) in accordance with the express provisions of this
Agreement, the related Mortgage Notes, the related Mortgage, the related loan
agreement, if any, and the related Intercreditor Agreement.
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Account; Servicing Advances; Reserve Accounts.
(a) The Master Servicer shall, as to all the Serviced Loans,
establish and maintain one or more accounts (each a "Servicing Account"), into
which all Escrow Payments received by it with respect to the Serviced Loans
shall be deposited and retained. Subject to any terms of the related loan
documents that specify the nature of the account in which Escrow Payments shall
be held, each Servicing Account shall be an Eligible Account. Withdrawals of
amounts so collected in respect of any Serviced Loan (and interest earned
thereon) from a Servicing Account may be made only: (i) to effect payment of
real estate taxes, assessments, insurance premiums, ground rents (if applicable)
and comparable items in respect of related Mortgaged Property; (ii) to reimburse
the Master Servicer, the Special Servicer or the Trustee, as applicable, for any
unreimbursed Servicing Advances made thereby to cover any of the items described
in the immediately preceding clause (i); (iii) to refund to the related
Mortgagor any sums as may be determined to be overages; (iv) to pay interest or
other income, if required and as described below, to the related Mortgagor on
balances in the Servicing Account (or, if and to the extent not payable to the
related Mortgagor, to pay such interest or other income (up to the amount of any
Net Investment Earnings in respect of such Servicing Account for each Collection
Period) to the Master Servicer); (v) disburse Insurance Proceeds if required to
be applied to the repair or restoration of the related Mortgaged Property; or
(vi) to clear and terminate the Servicing Account at the termination of this
Agreement in accordance with Section 9.01. The Master Servicer shall pay or
cause to be paid to the related Mortgagor interest, if any, earned on the
investment of funds in a Servicing Account maintained thereby, if required by
law or the terms of the related Serviced Loan. If the Master Servicer shall
deposit into a Servicing Account any amount not required to be deposited
therein, it may at any time withdraw such amount from such Servicing Account,
any provision herein to the contrary notwithstanding. The Special Servicer shall
within two Business Days after receipt deliver all Escrow Payments received by
it to the Master Servicer for deposit into the applicable Servicing Account.
(b) The Master Servicer shall as to each Serviced Loan, including
each Specially Serviced Loan, (i) maintain accurate records with respect to the
related Mortgaged Property reflecting the status of real estate taxes,
assessments and other similar items that are or may become a lien thereon and
the status of insurance premiums and any ground rents payable in respect thereof
and (ii) use reasonable efforts consistent with the Servicing Standard to
obtain, from time to time, all bills for the payment of such items (including
renewal premiums) and effect payment thereof prior to the applicable penalty or
termination date. For purposes of effecting any such payment, the Master
Servicer shall apply Escrow Payments as allowed under the terms of the related
loan documents; provided that if such Serviced Loan does not require the related
Mortgagor to escrow for the payment of real estate taxes, assessments, insurance
premiums, ground rents (if applicable) and similar items, each of the Master
Servicer and the Special Servicer shall use reasonable efforts, as to those
Serviced Loans it is obligated to service hereunder, and subject to and in
accordance with the Servicing Standard, enforce the requirement of the related
Mortgage that the Mortgagor make payments in respect of such items at the time
they first become due.
(c) In accordance with the Servicing Standard and for all Serviced
Loans, but subject to Section 3.11(h), the Master Servicer shall make a
Servicing Advance with respect to each Mortgaged Property (including each
Mortgaged Property relating to a Specially Serviced Loan) all such funds as are
necessary for the purpose of effecting the timely payment of (i) real estate
taxes, assessments and other similar items, (ii) ground rents (if applicable),
and (iii) premiums on Insurance Policies, in each instance prior to the
applicable penalty or termination date if and to the extent that (x) Escrow
Payments (if any) collected from the related Mortgagor are insufficient to pay
such item when due, and (y) the related Mortgagor has failed to pay such item on
a timely basis; provided that, in the case of amounts described in the preceding
clause (i), the Master Servicer shall not make a Servicing Advance of any such
amount until the Master Servicer (in accordance with the Servicing Standard) has
actual knowledge that the Mortgagor has not made such payments and reasonably
anticipates that such amounts will not be paid by the related Mortgagor on or
before the applicable penalty date. All such Advances shall be reimbursable in
the first instance from related collections from the Mortgagor and further as
provided in Section 3.05. No costs incurred by the Master Servicer in effecting
the payment of real estate taxes, assessments and, if applicable, ground rents
on or in respect of such Mortgaged Properties shall, for purposes hereof,
including calculating monthly distributions to Certificateholders, be added to
the respective unpaid principal balances or Stated Principal Balances of the
related Serviced Loans, notwithstanding that the terms of such Serviced Loans so
permit; provided that this sentence shall not be construed to limit the rights
of the Master Servicer on behalf of the Trust or, if a Whole Loan is involved,
on behalf of the related Companion Loan Holder, to enforce any obligations of
the related Mortgagor under such Serviced Loan.
The parties hereto acknowledge that, pursuant to the applicable
Non-Serviced Loan Pooling and Servicing Agreement, the Beacon Seattle & DC
Portfolio Master Servicer or the 000 Xxxxxxxxx Xxxxxx Master Servicer (as
applicable) is obligated to make servicing advances with respect to the Beacon
Seattle & DC Portfolio Mortgage Loan and the 000 Xxxxxxxxx Xxxxxx Pari Passu
Mortgage Loan (as applicable). The Beacon Seattle & DC Portfolio Master Servicer
or the 000 Xxxxxxxxx Xxxxxx Master Servicer (as applicable) shall be entitled to
reimbursement for Beacon Seattle & DC Portfolio Nonrecoverable Servicing
Advances or 000 Xxxxxxxxx Xxxxxx Nonrecoverable Servicing Advances (as
applicable) (with any accrued and unpaid interest thereon provided for under the
related Non-Serviced Loan Pooling and Servicing Agreement) in the manner set
forth in the related Non-Serviced Loan Pooling and Servicing Agreement and the
related Intercreditor Agreement.
(d) The Master Servicer shall establish and maintain, as applicable,
one or more accounts (the "Reserve Accounts"), in which all Reserve Funds, if
any, received by it with respect to the Serviced Loans shall be deposited and
retained. As and to the extent consistent with the Servicing Standard and the
related loan documents, the Master Servicer may make withdrawals of amounts so
deposited, and draws under any Letter of Credit delivered in lieu of Reserve
Funds, to pay for, or to reimburse the related Mortgagor in connection with, the
costs associated with the related tenant improvements, leasing commissions,
repairs, replacements, capital improvements and/or environmental testing and
remediation, litigation and/or other special expenses at or with respect to the
related Mortgaged Property for which such Reserve Funds were intended or such
Letter of Credit was delivered and, in the case of a Reserve Fund constituting
debt service reserve accounts, to apply amounts on deposit therein in respect of
principal and interest on the related Serviced Loan. In addition, as and to the
extent consistent with the Servicing Standard and the related loan documents,
the Master Servicer may make withdrawals of amounts so deposited, and draws
under any Letter of Credit so delivered, to prepay the Serviced Loan in the
event certain leasing or other economic criteria are not satisfied at the
related Mortgaged Property (but only if such prepayment is required by the
related loan documents or continuing to hold such funds or Letter of Credit as
Additional Collateral is not consistent with the Servicing Standard), or to
release such amounts to the related Mortgagor or otherwise apply such amounts
for any other appropriate purpose in the event that such criteria are satisfied,
and the Master Servicer may return any Letter of Credit so delivered to the
related Mortgagor. Subject to the terms and limitations of the related loan
documents, each Reserve Account shall be an Eligible Account. Interest and other
income, if any, earned on funds on deposit in any Reserve Account held by the
Master Servicer (to the extent of any Net Investment Earnings with respect to
such Reserve Account for any Collection Period), shall be for the benefit of and
payable to the Master Servicer, unless otherwise required to be paid to the
related Mortgagor by law or the terms of the related Serviced Loan. Any
out-of-pocket expenses incurred by the Master Servicer to enable the Master
Servicer to make any draw under any Letter of Credit shall constitute a
Servicing Advance, and the Master Servicer shall make reasonable efforts to
recover such expenses from the related Mortgagor to the extent the Mortgagor is
required to pay such expenses under the terms of the related loan documents.
(e) To the extent an operations and maintenance plan is required to
be established and executed pursuant to the terms of a Serviced Loan, the Master
Servicer shall request from the Mortgagor written confirmation thereof within a
reasonable time after the later of the Closing Date and the date as of which
such plan is required to be established or completed. To the extent any repairs,
capital improvements, actions or remediations are required to have been taken or
completed pursuant to the terms of the Serviced Loan, the Master Servicer shall
request from the Mortgagor written confirmation of such actions and remediations
within a reasonable time after the later of the Closing Date and the date as of
which such action or remediations are required by the related loan documents to
be or to have been taken or completed. To the extent a Mortgagor shall fail to
promptly respond to any inquiry described in this Section 3.03(e), the Master
Servicer shall determine whether the related Mortgagor has failed to perform its
obligations under the related Serviced Loan and report any such failure to the
Special Servicer, the Trustee, the related Companion Loan Holder (if a Whole
Loan is involved) and the Directing Certificateholder within a reasonable time
after the date as of which such actions or remediations are required to be or to
have been taken or completed. The Master Servicer shall promptly give written
notice to the Trustee, the Special Servicer, the related Companion Loan Holder
(if a Whole Loan is involved), the Controlling Holder (if an A/B Whole Loan is
involved) and the Directing Certificateholder if the Master Servicer shall
determine that any Mortgagor has failed to perform its obligations under the
related loan documents in respect of environmental matters.
(f) Promptly following the Closing Date, the Trustee shall send
written notice to the Beacon Seattle & DC Portfolio Master Servicer and the
Beacon Seattle & DC Portfolio Trustee stating that, as of the Closing Date, the
Trustee is the holder of the Beacon Seattle & DC Portfolio Mortgage Loan and
directing the Beacon Seattle & DC Portfolio Master Servicer to remit to the
Master Servicer all amounts payable to, and to forward, deliver or otherwise
make available, as the case may be, to the Master Servicer all reports,
statements, documents, communications and other information that are to be
forwarded, delivered or otherwise made available to, the holder of the Beacon
Seattle & DC Portfolio Mortgage Loan under the Beacon Seattle & DC Portfolio
Intercreditor Agreements and the Beacon Seattle & DC Portfolio Pooling
Agreement. The Master Servicer shall, on the day of receipt thereof, deposit
into the Certificate Account all amounts received with respect to the Beacon
Seattle & DC Portfolio Loan, Beacon Seattle & DC Portfolio Mortgaged Property or
any related REO Property.
(g) Promptly following the Closing Date, the Trustee shall send
written notice to the 000 Xxxxxxxxx Xxxxxx Master Servicer and the 000 Xxxxxxxxx
Xxxxxx Trustee stating that, as of the Closing Date, the Trustee is the holder
of the 000 Xxxxxxxxx Xxxxxx Pari Passu Mortgage Loan and directing the 000
Xxxxxxxxx Xxxxxx Master Servicer to remit to the Master Servicer all amounts
payable to, and to forward, deliver or otherwise make available, as the case may
be, to the Master Servicer all reports, statements, documents, communications
and other information that are to be forwarded, delivered or otherwise made
available to, the holder of the 000 Xxxxxxxxx Xxxxxx Pari Passu Mortgage Loan
under the 000 Xxxxxxxxx Xxxxxx Intercreditor Agreements and the 000 Xxxxxxxxx
Xxxxxx Pooling Agreement. The Master Servicer shall, on the day of receipt
thereof, deposit into the Certificate Account all amounts received with respect
to the 000 Xxxxxxxxx Xxxxxx Pari Passu Loan, the 000 Xxxxxxxxx Xxxxxx Mortgaged
Property or any related REO Property.
Section 3.04 Certificate Account, Distribution Account, REMIC I
Distribution Account, REMIC II Distribution Account, Excess Interest
Distribution Account, Excess Liquidation Proceeds Account, Class A-2FL Floating
Rate Account, Class A-JFL Floating Rate Account, Interest Reserve Account and
Whole Loan Custodial Account.
(a) The Master Servicer shall segregate and hold all funds collected
and received by it in connection with the Mortgage Pool separate and apart from
its own funds and general assets. The Master Servicer shall establish and
maintain one or more accounts (collectively, the "Certificate Account"), held on
behalf of the Trustee in trust for the benefit of the Certificateholders. The
Certificate Account shall be an Eligible Account. The Master Servicer shall
deposit or cause to be deposited into the Certificate Account, within one
Business Day of receipt (in the case of payments by Mortgagors or other
collections on or in respect of the Mortgage Loans) or as otherwise required
hereunder, the following payments and collections received or made by or on
behalf of it (and, with respect to any Non-Serviced Loan, to the extent received
pursuant to the related Intercreditor Agreement) subsequent to the Cut-off Date
(other than in respect of principal, interest, Escrow Payments and any other
amounts due and payable on the Mortgage Loans on or before the Cut-off Date,
which payments shall be delivered promptly to the related Mortgage Loan Seller
or its related designee, with negotiable instruments endorsed as necessary and
appropriate without recourse):
(i) all payments, from whatever source, or transfers from a debt
service reserve account, on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(ii) all payments, from whatever source, or transfers from a debt
service reserve account, on account of interest on the Mortgage Loans
including Default Interest and Excess Interest;
(iii) all Prepayment Premiums received in respect of the Mortgage
Loans;
(iv) all payments, Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds received in respect of the Mortgage Loans together
with any amounts representing recoveries of Workout-Delayed Reimbursement
Amounts or Nonrecoverable Advances in respect of the related Mortgage
Loans;
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect
to Permitted Investments of funds held in the Certificate Account;
(vi) any amounts required to be deposited by the Master Servicer or
the Special Servicer pursuant to Section 3.07(b) in connection with losses
resulting from a deductible clause in a blanket or master single insurance
policy;
(vii) any amounts required to be transferred to the Certificate
Account from the REO Account pursuant to Section 3.16(c);
(viii) any amounts representing payments made by Mortgagors that are
allocable to cover items in respect of which Servicing Advances have been
made;
(ix) any proceeds from the repurchase or substitution of Mortgage
Loans under Section 2.03;
(x) insofar as they do not constitute Escrow Payments, any amounts
paid by a Mortgagor specifically to cover items for which a Servicing
Advance has been made or that represent a recovery of property protection
expenses from a Mortgagor;
(xi) [Reserved]; and
(xii) any Loss of Value Payments, as set forth in Section 3.05(g);
provided that any amounts described above (other than clause (v) of
this Section 3.04(a) that relate to the Whole Loan or any related REO Property
(other than Liquidation Proceeds derived from the sale of the Mortgage Loan
pursuant to Section 3.18 to or through the related Note B Holder pursuant to the
related Intercreditor Agreement) shall be deposited into the Whole Loan
Custodial Account, and, in any such case, shall thereafter be transferred as
provided in Section 3.05(f).
The foregoing requirements for deposit into the Certificate Account
shall be exclusive. Without limiting the generality of the foregoing, actual
payments from Mortgagors in the nature of Escrow Payments, Reserve Funds, late
payment charges, assumption fees, assumption application fees, earnout fees,
extension fees, substitution fees, modification fees, charges for beneficiary
statements or demands and amounts collected for checks returned for insufficient
funds, need not be deposited by the Master Servicer in the Certificate Account.
The Master Servicer shall promptly deliver to the Special Servicer any of the
foregoing items received by it, if and to the extent that such items constitute
Additional Special Servicing Compensation payable to the Special Servicer. If
the Master Servicer shall deposit into the Certificate Account any amount not
required to be deposited therein, it may at any time withdraw such amount from
the Certificate Account, any provision herein to the contrary notwithstanding.
Upon receipt of any of the amounts described in clauses (i) through
(iv) and (viii) of this Section 3.04(a) with respect to any Serviced Loan (for
the avoidance of doubt, not including any REO Loan), the Special Servicer shall
promptly, but in no event later than one Business Day after receipt of available
funds, remit such amounts to the Master Servicer for deposit into the
Certificate Account in accordance with the second preceding paragraph, unless
the Special Servicer determines, consistent with the Servicing Standard, that a
particular item should not be deposited because of a restrictive endorsement.
Any such amounts received by the Special Servicer with respect to an REO
Property (other than an REO Property related to a Whole Loan) shall be deposited
by the Special Servicer into the REO Account and remitted to the Master Servicer
for deposit into the Certificate Account pursuant to Section 3.16(c). With
respect to any such amounts paid by check to the order of the Special Servicer,
the Special Servicer shall endorse such check to the order of the Master
Servicer unless the Special Servicer determines, consistent with the Servicing
Standard, that a particular item cannot be so endorsed and delivered because of
a restrictive endorsement.
(b) The Trustee shall establish and maintain one or more trust
accounts (collectively, the "Distribution Account") to be held in trust for the
benefit of the Trust as holder of the REMIC I Regular Interests, the Class A-2FL
Regular Interest and the Class A-JFL Regular Interest, and for the
Certificateholders. The Distribution Account shall be an Eligible Account. On or
prior to 1:00 p.m. New York City time on each Master Servicer Remittance Date,
the Master Servicer shall deliver to the Trustee, for deposit into the
Distribution Account, an aggregate amount of immediately available funds equal
to the Master Servicer Remittance Amount for such Master Servicer Remittance
Date. If, at 3:00 p.m., New York City time, on any Master Servicer Remittance
Date, the Trustee has not received the Master Servicer Remittance Amount, the
Trustee shall provide notice to the Master Servicer in the same manner as
required by Section 4.03(a) with respect to P&I Advances.
In the event that the Master Servicer fails to remit the Master
Servicer Remittance Amount for such Master Servicer Remittance Date on the
related Master Servicer Remittance Date, the Master Servicer shall pay to the
Trustee interest at the Reimbursement Rate on the Master Servicer Remittance
Amount for the period from and including such Master Servicer Remittance Date to
but excluding the date on which the Master Servicer Remittance Amount is
actually received by the Trustee.
In addition, the Master Servicer shall, as and when required
hereunder, deliver to the Trustee for deposit into the Distribution Account:
(i) any P&I Advances required to be made by the Master Servicer in
accordance with Section 4.03(a);
(ii) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.19(e) in connection with Prepayment Interest
Shortfalls; and
(iii) any Liquidation Proceeds paid by the Master Servicer or a
Majority Certificateholder of the Controlling Class in connection with the
purchase of all of the Mortgage Loans and any REO Properties pursuant to
Section 9.01, exclusive of the portion of such Liquidation Proceeds
required to be deposited into the Certificate Account pursuant to Section
9.01.
The Trustee shall, upon receipt, deposit into the Distribution
Account any and all amounts received or advanced by the Trustee that are
required by the terms of this Agreement to be deposited therein.
All such amounts deposited in respect of the Mortgage Loans (other
than Excess Interest, if any) shall, on each Distribution Date, be deemed to be
deposited into the REMIC I Distribution Account in respect of such Mortgage
Loans. All such amounts deposited in respect of such Excess Interest shall be
deemed to be deposited into the Excess Interest Distribution Account.
(c) (i) The Trustee shall establish and maintain the REMIC I
Distribution Account, as a sub-account of the Distribution Account, in the name
of the Trustee, in trust for the benefit of the Certificateholders (other than
Holders of the Class V Certificates). The REMIC I Distribution Account shall be
established and maintained as an Eligible Account or as a sub-account of the
Distribution Account. With respect to each Distribution Date, the Trustee shall
withdraw or be deemed to withdraw from the REMIC I Distribution Account and
deposit or be deemed to deposit into the REMIC II Distribution Account on or
before such date the amount of the Available Distribution Amount (including P&I
Advances) and Prepayment Premiums to be distributed in respect of the REMIC I
Regular Interests pursuant to Section 4.01(a)(i) and Section 4.01(c)(iv) on such
date.
(ii) The Trustee shall establish and maintain the REMIC II
Distribution Account, as a sub-account of the Distribution Account, in the
name of the Trustee, in trust for the benefit of the REMIC II
Certificateholders. The REMIC II Distribution Account shall be established
and maintained as an Eligible Account or as a sub-account of the
Distribution Account. With respect to each Distribution Date, the Trustee
shall withdraw or be deemed to withdraw from the REMIC II Distribution
Account the amount of the Available Distribution Amount (including P&I
Advances) and Prepayment Premiums to be distributed in respect of the
applicable REMIC II Certificates and the Class A-2FL and Class A-JFL
Regular Interests pursuant to Section 4.01(b) and Section 4.01(c) on such
date.
(iii) [RESERVED].
(iv) The Trustee shall establish and maintain one or more accounts
or sub-accounts (collectively, the "Excess Liquidation Proceeds Account")
in the name of the Trustee, in trust for the benefit of the
Certificateholders. Each account that constitutes the Excess Liquidation
Proceeds Account shall be an Eligible Account. On each Master Servicer
Remittance Date, the Master Servicer shall withdraw from the Certificate
Account and remit to the Trustee for deposit into the Excess Liquidation
Proceeds Account all Excess Liquidation Proceeds received during the
Collection Period ending on the Business Day prior to such Master Servicer
Remittance Date.
(v) The Trustee shall establish and maintain one or more accounts or
sub-accounts (collectively, the "Excess Interest Distribution Account"),
in the name of the Trustee, in trust for the benefit of the Class V
Certificateholders. Each account that constitutes the Excess Interest
Distribution Account shall be an Eligible Account. On each Master Servicer
Remittance Date, the Master Servicer shall withdraw from the Certificate
Account and remit to the Trustee for deposit into the Excess Interest
Distribution Account all Excess Interest received during the Collection
Period ending on the Business Day prior to such Master Servicer Remittance
Date.
(vi) On or before the Closing Date, the Swap Trustee shall establish
and maintain the Class A-2FL Floating Rate Account in trust for the
benefit of the Class A-2FL Certificateholders and the Class A-2FL Swap
Counterparty. The Class A-2FL Floating Rate Account shall (i) at all times
be an Eligible Account and (ii) relate solely to the Class A-2FL
Certificates and amounts payable in respect of the Class A-2FL Swap
Contract. The Swap Trustee shall deposit into the Class A-2FL Floating
Rate Account all amounts received in respect of distributions on the Class
A-2FL Regular Interest as specified in Section 4.01(a) and Section
4.01(b), and shall immediately deposit into the Class A-2FL Floating Rate
Account all amounts received from the Class A-2FL Swap Counterparty under
the Class A-2FL Swap Contract.
(vii) On or before the Closing Date, the Swap Trustee shall
establish and maintain the Class A-JFL Floating Rate Account in trust for
the benefit of the Class A-JFL Certificateholders and the Class A-JFL Swap
Counterparty. The Class A-JFL Floating Rate Account shall (i) at all times
be an Eligible Account and (ii) relate solely to the Class A-JFL
Certificates and amounts payable in respect of the Class A-JFL Swap
Contract. The Swap Trustee shall deposit into the Class A-JFL Floating
Rate Account all amounts received in respect of distributions on the Class
A-JFL Regular Interest as specified in Section 4.01(a) and Section
4.01(b), and shall immediately deposit into the Class A-JFL Floating Rate
Account all amounts received from the Class A-JFL Swap Counterparty under
the Class A-JFL Swap Contract.
(d) Funds in the Certificate Account may be invested only in
Permitted Investments in accordance with the provisions of Section 3.06. The
Master Servicer shall give notice to the other parties hereto of the location of
the Certificate Account as of the Closing Date and of the new location of the
Certificate Account prior to any change thereof. The Distribution Account, the
REMIC I Distribution Account, the REMIC II Distribution Account, the Class A-2FL
Floating Rate Account, the Class A-JFL Floating Rate Account, the Excess
Interest Distribution Account and the Excess Liquidation Proceeds Account shall
be established at the Corporate Trust Office of the Trustee as of the Closing
Date, and the Trustee shall give notice to the other parties hereto of the new
location of the Distribution Account, the REMIC I Distribution Account, the
REMIC II Distribution Account, the Class A-2FL Floating Rate Account, the Class
A-JFL Floating Rate Account, the Excess Interest Distribution Account and the
Excess Liquidation Proceeds Account prior to any change thereof. Funds in the
Excess Interest Distribution Account, if established, and the Excess Liquidation
Proceeds Account, if established, shall remain uninvested.
(e) The Master Servicer shall establish and maintain one or more
Whole Loan Custodial Accounts in which the Master Servicer shall deposit or
cause to be deposited within one Business Day of receipt (in the case of
payments by Mortgagors or other collections on or in respect of a Serviced Whole
Loan) or as otherwise required hereunder, the following payments and collections
received or made by or on behalf of it subsequent to the Cut-off Date (other
than in respect of principal, interest and any other amounts due and payable on
such Serviced Whole Loan on or before the Cut-off Date, which payments shall be
held as provided in the related Intercreditor Agreement):
(i) all payments, from whatever source, or transfers from a
debt service reserve account, on account of principal, including
Principal Prepayments, on such Whole Loan;
(ii) all payments, from whatever source, or transfers from a
debt service reserve account, on account of interest on such Whole
Loan;
(iii) all Prepayment Premiums received in respect of such
Whole Loan;
(iv) all payments, Insurance Proceeds, Condemnation Proceeds
and Liquidation Proceeds received in respect of such Whole Loan,
together with any amounts representing recoveries of Workout-Delayed
Reimbursement Amounts or Nonrecoverable Advances in respect of the
related Whole Loan;
(v) any amounts required to be deposited by the Master
Servicer pursuant to Section 3.06 in connection with losses incurred
with respect to Permitted Investments of funds held in such Whole
Loan Custodial Account;
(vi) any amounts required to be deposited by the Master
Servicer or the Special Servicer pursuant to Section 3.07(b) in
connection with losses with respect to such Whole Loan resulting
from a deductible clause in a blanket or master single insurance
policy;
(vii) any amounts required to be transferred from the related
REO Account pursuant to Section 3.16(c);
(viii) any amounts representing payments made by Mortgagors
that are allocable to cover items in respect of which Servicing
Advances have been made; and
(ix) insofar as they do not constitute Escrow Payments, any
amounts paid by the related Mortgagor with respect to the related
Whole Loan specifically to cover items for which a Servicing Advance
has been made or that represent a recovery of property protection
expenses from a Mortgagor.
The foregoing requirements for deposit into the Whole Loan Custodial
Accounts shall be exclusive. Without limiting the generality of the foregoing,
actual payments from Mortgagors in the nature of Escrow Payments, Reserve Funds,
assumption fees, assumption application fees, earnout fees, extension fees,
substitution fees, modification fees, charges for beneficiary statements or
demands and amounts collected for checks returned for insufficient funds, need
not be deposited by the Master Servicer in the Whole Loan Custodial Accounts.
The Master Servicer shall promptly deliver to the Special Servicer any of the
foregoing items received by it, if and to the extent that such items constitute
Additional Special Servicing Compensation payable to the Special Servicer. If
the Master Servicer shall deposit into any Whole Loan Custodial Account any
amount not required to be deposited therein, it may at any time withdraw such
amount from such Whole Loan Custodial Account, any provision herein to the
contrary notwithstanding.
Notwithstanding the foregoing or any other provision to the contrary
in this Agreement, the Master Servicer may maintain the Certificate Account and
the respective Whole Loan Custodial Accounts as multiple separate sub-accounts
of a single Eligible Account; provided that: (i) all deposits into and
withdrawals from such single Eligible Account shall be made in the same manner
as would be the case if the Certificate Account and the respective Whole Loan
Custodial Accounts were maintained as multiple separate accounts; (ii) all
distributions on the Certificates will be calculated and made in the same manner
as would be the case if the Certificate Account and the respective Whole Loan
Custodial Accounts were maintained as multiple separate accounts; (iii) the
Master Servicer shall make credits and debits to those multiple sub-accounts in
a manner consistent with the provisions of this Agreement governing deposits and
withdrawals of funds to and from the Certificate Account and the respective
Whole Loan Custodial Accounts, respectively; (iv) the Master Servicer's
maintaining the Certificate Account and the respective Whole Loan Custodial
Accounts as multiple separate sub-accounts of a single Eligible Account (as
opposed to in the form of multiple separate Eligible Accounts) shall not
adversely affect any of the Certificateholders or Companion Loan Holder (if a
Whole Loan is affected); and (v) such single Eligible Account shall be entitled
substantially as follows: "Bank of America, National Association, as Master
Servicer, in trust for the registered holders of Banc of America Commercial
Mortgage Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-2, and
the respective Companion Loan Holder, as their interests may appear,
Certificate/Custodial Account".
Upon receipt of any of the amounts described in clauses (i) through
(iv) and (viii) of this Section 3.04(e) with respect to such Whole Loan (for the
avoidance of doubt, not including any REO Loan), the Special Servicer shall
promptly, but in no event later than one Business Day after receipt of available
funds, remit such amounts to the Master Servicer for deposit into the applicable
Whole Loan Custodial Account in accordance with the second preceding paragraph,
unless the Special Servicer determines, consistent with the Servicing Standard,
that a particular item should not be deposited because of a restrictive
endorsement. Any such amounts received by the Special Servicer with respect to
an REO Property (other than an REO Property that is not related to a Whole Loan)
shall be deposited by the Special Servicer into the related REO Account and
remitted to the Master Servicer for deposit into the related Whole Loan
Custodial Account pursuant to Section 3.16(c). With respect to any such amounts
paid by check to the order of the Special Servicer, the Special Servicer shall
endorse such check to the order of the Master Servicer unless the Special
Servicer determines, consistent with the Servicing Standard, that a particular
item cannot be so endorsed and delivered because of a restrictive endorsement.
(f) Funds in a Whole Loan Custodial Account may be invested only in
Permitted Investments in accordance with the provisions of Section 3.06. The
Master Servicer shall give notice to the Trustee, the Special Servicer, the
Depositor and the related Companion Loan Holder, of the location of each Whole
Loan Custodial Account as of the Closing Date and of the new location of a Whole
Loan Custodial Account prior to any change thereof.
(g) The Master Servicer shall establish and maintain the Interest
Reserve Account in trust for the benefit of the Certificateholders. The Master
Servicer is hereby authorized to make deposits in and withdrawals from the
Interest Reserve Account, in accordance with the terms of this Agreement. The
Interest Reserve Account shall be maintained as a segregated account separate
from other accounts.
(h) If any Loss of Value Payments are received in connection with a
Material Defect or Material Breach, as the case may be, pursuant to or as
contemplated by Section 2.03(i), the Special Servicer shall establish and
maintain one or more non-interest bearing accounts (collectively, the "Loss of
Value Reserve Fund") to be held in trust for the benefit of the
Certificateholders, for purposes of holding such Loss of Value Payments. Each
account that constitutes the Loss of Value Reserve Fund shall be an Eligible
Account or a sub-account of an Eligible Account. The Special Servicer shall,
upon receipt, deposit in the Loss of Value Reserve Fund all Loss of Value
Payments received by it.
Section 3.05 Permitted Withdrawals From the Certificate Account, the
Distribution Account, the Whole Loan Custodial Accounts, the Class A-2FL
Floating Rate Account, the Class A-JFL Floating Rate Account and the Excess
Liquidation Proceeds Account.
(a) The Master Servicer may, from time to time, make withdrawals
from the Certificate Account for any of the following purposes (the order set
forth below not constituting an order of priority for such withdrawals):
(i) to remit to the Trustee no later than 1:00 p.m. (New York time)
for deposit into the Distribution Account and the Excess Interest
Distribution Account, the Master Servicer Remittance Amount for, and, to
the extent permitted or required by Section 4.03(a), as applicable, any
P&I Advances to be made on, each Master Servicer Remittance Date;
(ii) to reimburse the Master Servicer or the Trustee, as applicable,
for xxxxxxxxxxxx X&X Advances made thereby (in each case, with its own
funds), the Master Servicer's and the Trustee's, as the case may be,
respective rights to reimbursement pursuant to this clause (ii) with
respect to any P&I Advance (other than Nonrecoverable P&I Advances, which
are reimbursable pursuant to clause (vii) of this Section 3.05(a)) being
limited to amounts that represent Late Collections of interest and
principal received in respect of the particular Mortgage Loan or REO Loan
as to which such P&I Advance was made (net of related Master Servicing
Fees and/or Workout Fees) (exclusive of each Mortgage Loan or REO Loan
included in a Whole Loan to the extent such reimbursement was paid out of
collections from the related Whole Loan Custodial Account);
(iii) to pay to the Master Servicer earned and unpaid Master
Servicing Fees in respect of each Mortgage Loan and REO Loan (exclusive of
each Mortgage Loan or REO Loan included in a Whole Loan to the extent such
payment was paid out of collections from the related Whole Loan Custodial
Account), the Master Servicer's right to payment pursuant to this clause
(iii) with respect to any Mortgage Loan or REO Loan (exclusive of each
Mortgage Loan or REO Loan included in a Whole Loan to the extent such
payment was paid out of collections from the related Whole Loan Custodial
Account) being payable from, and limited to, amounts received on or in
respect of such Mortgage Loan (whether in the form of payments,
Liquidation Proceeds, Condemnation Proceeds or Insurance Proceeds) or such
REO Loan (whether in the form of REO Revenues, Liquidation Proceeds or
Insurance Proceeds) that are allocable as a recovery of interest thereon;
(iv) to pay to the Special Servicer, out of general collections on
the Mortgage Loans and any REO Properties, earned and unpaid Special
Servicing Fees in respect of each Specially Serviced Loan and REO Loan
(exclusive of each Mortgage Loan or REO Loan included in a Whole Loan or
any REO Property securing a Whole Loan to the extent such payment was paid
out of collections from the related Whole Loan Custodial Account), to pay
to the Beacon Seattle & DC Portfolio Special Servicer, out of general
collections on the Mortgage Loans and any REO Properties, the Trust Fund's
applicable share of any earned and unpaid special servicing fees,
liquidation fees and workout fees in respect of the Beacon Seattle & DC
Portfolio Mortgage Loan, and to pay to the 000 Xxxxxxxxx Xxxxxx Special
Servicer, out of general collections on the Mortgage Loans and any REO
Properties, the Trust Fund's applicable share of any earned and unpaid
special servicing fees, liquidation fees and workout fees in respect of
the 000 Xxxxxxxxx Xxxxxx Pari Passu Mortgage Loan;
(v) to pay to the Special Servicer earned and unpaid Workout Fees
and Liquidation Fees to which it is entitled pursuant to, and from the
sources contemplated by Section 3.11(c);
(vi) to reimburse itself, the Special Servicer or the Trustee, as
applicable, for any unreimbursed Servicing Advances made thereby (in each
case, with its own funds), the Master Servicer's, the Trustee's or the
Special Servicer's, as the case may be, respective rights to reimbursement
pursuant to this clause (vi) with respect to any Servicing Advance (other
than Nonrecoverable Servicing Advances, which are reimbursable pursuant to
clause (vii) of this Section 3.05(a)) being limited to (A) payments made
by the related Mortgagor that are allocable to cover the item in respect
of which such Servicing Advance was made, and (B) Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds and, if applicable, REO
Revenues received in respect of the particular Mortgage Loan or REO
Property (exclusive of each Mortgage Loan or REO Loan included in a Whole
Loan or any REO Property securing a Whole Loan to the extent such
reimbursement was paid out of collections from the related Whole Loan
Custodial Account) as to which such Servicing Advance was made;
(vii) (A) to reimburse the Master Servicer, the Special Servicer or
the Trustee, as applicable, out of general collections on the Mortgage
Loans and any REO Properties (exclusive of any Non-Serviced Loan), for any
unreimbursed Advances made thereby that have been determined to be
Nonrecoverable Advances (provided that amounts may be withdrawn over time
as hereinafter provided) or, subject to the limitations contained in the
following paragraphs of this Section 3.05(a), for any Workout-Delayed
Reimbursement Amounts, (B) to reimburse the Beacon Seattle & DC Portfolio
Master Servicer, Beacon Seattle & DC Portfolio Special Servicer or the
Beacon Seattle & DC Portfolio Trustee, as applicable, out of general
collections on the Mortgage Loans and any REO Properties, the Trust Fund's
pro rata share of any Beacon Seattle & DC Portfolio Nonrecoverable
Servicing Advance and (C) to reimburse the 000 Xxxxxxxxx Xxxxxx Master
Servicer, the 000 Xxxxxxxxx Xxxxxx Special Servicer or the 000 Xxxxxxxxx
Xxxxxx Trustee, as applicable, out of general collections on the Mortgage
Loans and any REO Properties, the Trust Fund's pro rata share of any 000
Xxxxxxxxx Xxxxxx Nonrecoverable Servicing Advance;
(viii) to pay the Trustee, the Master Servicer, or the Special
Servicer as applicable, any Advance Interest due and owing thereto out of
Default Charges collected on the Mortgage Pool, as and to the extent
contemplated by Section 3.27;
(ix) (A) to the extent that, during any Collection Period, the
Master Servicer has reimbursed or is reimbursing itself, the Special
Servicer and the Trustee, as applicable, for any unreimbursed Advance
pursuant to clause (ii), (vi) or (vii) of this Section 3.05(a) or pursuant
to Section 3.03, and insofar as payment has not already been made, and the
Default Charges then on deposit in the Certificate Account is not
sufficient to make such payment pursuant to clause (viii) of this Section
3.05(a), to pay the Master Servicer, the Special Servicer or the Trustee,
as the case may be, out of general collections on the Mortgage Loans and
any REO Properties (exclusive of each Mortgage Loan or REO Loan included
in a Whole Loan or any REO Property securing a Whole Loan to the extent
such reimbursement was paid out of collections from the related Whole Loan
Custodial Account), any related Advance Interest accrued and payable on
the portion of such Advance so reimbursed or being reimbursed; (B) at such
time as it reimburses the Beacon Seattle & DC Portfolio Master Servicer,
the Beacon Seattle & DC Portfolio Special Servicer or the Beacon Seattle &
DC Portfolio Trustee, as applicable, for the Trust Fund's pro rata share
of any Beacon Seattle & DC Portfolio Nonrecoverable Servicing Advance, to
pay to the Beacon Seattle & DC Portfolio Master Servicer, Beacon Seattle &
DC Portfolio Special Servicer and the Beacon Seattle & DC Portfolio
Trustee, as applicable, out of general collections on the Mortgage Loans
and any REO Properties, interest accrued and payable on the Trust Fund's
pro rata share of such Beacon Seattle & DC Portfolio Nonrecoverable
Servicing Advance and (C) at such time as it reimburses the 000 Xxxxxxxxx
Xxxxxx Master Servicer, the 000 Xxxxxxxxx Xxxxxx Special Servicer or the
000 Xxxxxxxxx Xxxxxx Trustee, as applicable, for the Trust Fund's pro rata
share of any 000 Xxxxxxxxx Xxxxxx Nonrecoverable Servicing Advance, to pay
to the 000 Xxxxxxxxx Xxxxxx Master Servicer, the 000 Xxxxxxxxx Xxxxxx
Special Servicer and the 000 Xxxxxxxxx Xxxxxx Trustee, as applicable, out
of general collections on the Mortgage Loans and any REO Properties,
interest accrued and payable on the Trust Fund's pro rata share of such
000 Xxxxxxxxx Xxxxxx Nonrecoverable Servicing Advance;
(x) to pay any outstanding expense, other than Advance Interest,
that was incurred with respect to any Mortgage Loan or related REO Loan
(exclusive of each Mortgage Loan or REO Loan included in a Whole Loan or
any REO Property securing a Whole Loan to the extent such payment was paid
out of collections from the related Whole Loan Custodial Account) and
that, if paid from a source other than Default Charges collected on the
Mortgage Pool, would constitute an Additional Trust Fund Expense, such
payment to be made out of Default Charges collected on the Mortgage Pool,
as and to the extent contemplated by Section 3.27;
(xi) to pay itself any items of Additional Master Servicing
Compensation, and to pay to the Special Servicer any items of Additional
Special Servicing Compensation to which it is entitled, in each case from
funds on deposit in the Certificate Account from time to time;
(xii) to pay any unpaid Liquidation Expenses incurred with respect
to any Mortgage Loan or REO Property (exclusive of each Mortgage Loan or
REO Loan included in a Whole Loan or any REO Property securing a Whole
Loan to the extent such payment was paid out of collections from the
related Whole Loan Custodial Account) such payments to be made, first, out
of payments, Insurance Proceeds, Condemnation Proceeds or Liquidation
Proceeds and, if applicable, REO Revenues received in respect of such
Mortgage Loan or REO Property, as the case may be, and then, out of
general collections on other Mortgage Loans and REO Properties (exclusive
of each Mortgage Loan or REO Loan included in a Whole Loan or any REO
Property securing a Whole Loan to the extent such payment was paid out of
collections from the related Whole Loan Custodial Account);
(xiii) to pay, in accordance with Section 3.11(i), out of general
collections on the Mortgage Loans and any REO Properties (exclusive of
each Mortgage Loan or REO Loan included in a Whole Loan or any REO
Property securing a Whole Loan to the extent such payment was paid out of
collections from the related Whole Loan Custodial Account), certain
servicing expenses that would, if advanced, constitute Nonrecoverable
Servicing Advances;
(xiv) to pay, out of general collections on the Mortgage Loans and
any REO Properties (exclusive of each Mortgage Loan or REO Loan included
in a Whole Loan or any REO Property securing a Whole Loan to the extent
such payment was paid out of collections from the related Whole Loan
Custodial Account), costs and expenses incurred by the Trust Fund pursuant
to Section 3.09(c) (other than the costs of environmental testing, which
are to be covered by, and reimbursable as, a Servicing Advance);
(xv) to pay itself, the Special Servicer, the Depositor, the
Trustee, or any of their respective directors, officers, members,
managers, employees and agents, as the case may be, out of general
collections on the Mortgage Loans and any REO Properties any amounts
payable to any such Person pursuant to Section 6.03, Section 7.01(b) or
Section 8.05(b), as applicable;
(xvi) to pay, out of general collections on the Mortgage Loans and
REO Properties (exclusive of each Mortgage Loan or REO Loan included in a
Whole Loan or any REO Property securing a Whole Loan to the extent such
payment was paid out of collections from the related Whole Loan Custodial
Account), for the cost of recording this Agreement in accordance with
Section 12.02(a);
(xvii) to pay, out of general collections on the Mortgage Loans and
any REO Properties (exclusive of any such amount arising in respect of
each Mortgage Loan or REO Loan included in a Whole Loan or any REO
Property securing a Whole Loan to the extent such payment was paid out of
collections from the related Whole Loan Custodial Account), any reasonable
out-of-pocket cost or expense (including the reasonable fees of tax
accountants and attorneys) incurred by the Trustee pursuant to Section
3.17(b) in connection with providing advice to the Special Servicer;
(xviii) (A) to pay to the Master Servicer, the Special Servicer, the
Trustee or the Depositor, as the case may be, any amount specifically
required to be paid to such Person at the expense of the Trust Fund under
any provision of this Agreement to which reference is not made in any
other clause of this Section 3.05(a) (exclusive of any such amount arising
in respect of a Mortgage Loan included in a Whole Loan to the extent such
payment was paid out of collections from the related Whole Loan Custodial
Account), it being acknowledged that this clause (xviii) shall not be
construed to modify any limitation otherwise set forth in this Agreement
on the time at which any Person is entitled to payment or reimbursement of
any amount or the funds from which any such payment or reimbursement is
permitted to be made and (B) with respect to any Non-Serviced Mortgage
Loan, to reimburse the related Non-Serviced Loan Master Servicer,
Non-Serviced Loan Special Servicer or Non-Serviced Loan Trustee, as
applicable for the pro rata portion of any Additional Trust Fund Expenses
(as such term is defined in the related Non-Serviced Loan Pooling and
Servicing Agreement) that relate exclusively to the servicing of such
Non-Serviced Loan out of general collections on the Mortgage Loans and the
REO Properties;
(xix) to pay the Master Servicer, the Special Servicer, the Mortgage
Loan Sellers, a Controlling Class Certificateholder or any other
particular Person, as the case may be, with respect to each Mortgage Loan
(exclusive of any such amount arising in respect of each Mortgage Loan
included in a Whole Loan to the extent such payment was paid out of
collections from the Whole Loan Custodial Account), if any, previously
purchased or otherwise removed from the Trust Fund by such Person pursuant
to or as contemplated by this Agreement, all amounts received thereon
subsequent to the date of purchase;
(xx) to transfer Excess Liquidation Proceeds (exclusive of Excess
Liquidation Proceeds received with respect to a Mortgage Loan included the
Whole Loan to the extent such payment was paid out of collections from the
Whole Loan Custodial Account) to the Excess Liquidation Proceeds Account
in accordance with Section 3.04(c)(iv);
(xxi) to withdraw any amounts deposited in error; and
(xxii) to clear and terminate the Certificate Account at the
termination of this Agreement pursuant to Section 9.01.
If amounts on deposit in the Certificate Account at any particular
time (after withdrawing any portion of such amounts deposited into the
Certificate Account in error) are insufficient to satisfy all payments,
reimbursements and remittances to be made therefrom as set forth in clauses (ii)
through (xxii) of this Section 3.05(a), then the corresponding withdrawals from
the Certificate Account shall be made in the following priority and subject to
the following rules: (A) if the payment, reimbursement or remittance is to be
made from a specific source of funds, then such payment, reimbursement or
remittance shall be made from that specific source of funds on a pro rata basis
with any and all other payments, reimbursements and remittances to be made from
such specific source of funds; and (B) if the payment, reimbursement or
remittance can be made from any funds on deposit in the Certificate Account,
then (following any withdrawals made from the Certificate Account in accordance
with the immediately preceding clause (A) of this Section 3.05(a)) such payment,
reimbursement or remittance shall be made from such general funds remaining on a
pro rata basis with any and all other payments, reimbursements or remittances to
be made from such general funds; provided that any reimbursements of Advances in
respect of any particular Mortgage Loan or REO Property out of the Certificate
Account pursuant to any of clauses (ii), (vi) and (vii) of this Section 3.05(a),
and any payments of interest thereon out of the Certificate Account pursuant to
either of clauses (viii) and (ix) of this Section 3.05(a), shall be made (to the
extent of their respective entitlements to such reimbursements and/or payments):
first, to the Trustee and second, pro rata, to the Master Servicer and Special
Servicer.
The Master Servicer shall keep and maintain separate accounting
records, on a loan-by-loan basis (and on a property-by-property basis for REO
Loans) when appropriate, in connection with any withdrawal from the Certificate
Account pursuant to clauses (ii) through (xxii) of this Section 3.05(a)
sufficient to determine the amounts attributable to REMIC I or, in the case of a
withdrawal not related to a specific Mortgage Loan, allocable pro rata based on
relative aggregate Stated Principal Balances.
The Master Servicer shall pay to the Special Servicer (or to third
party contractors at the direction of the Special Servicer) from the Certificate
Account amounts permitted to be paid to it (or to such third party contractors)
therefrom promptly upon receipt of a certificate of a Servicing Officer of the
Special Servicer describing the item and amount to which the Special Servicer
(or such third party contractors) is entitled. The Master Servicer may rely
conclusively on any such certificate and shall have no duty to recalculate the
amounts stated therein. The Special Servicer shall keep and maintain separate
accounting for each Specially Serviced Loan and REO Property, on a loan-by-loan
and property-by-property basis, for the purpose of justifying any request for
withdrawal from the Certificate Account.
Upon the determination that a previously made Advance is a
Nonrecoverable Advance, instead of obtaining reimbursement out of general
collections immediately, the Master Servicer, the Special Servicer or the
Trustee, as applicable, may, in its sole discretion, elect to obtain
reimbursement for such Nonrecoverable Advance over time and the unreimbursed
portion of such Advance will accrue interest at the Reimbursement Rate. If such
an election to obtain reimbursement over time is made, the Master Servicer, the
Special Servicer or the Trustee, as applicable, will, during the first six
months after such nonrecoverability determination was made, only seek
reimbursement for such Nonrecoverable Advance from collections of principal
(with such Nonrecoverable Advances being reimbursed before Workout-Delayed
Reimbursement Amounts). After such initial six months, the Master Servicer, the
Special Servicer or the Trustee, as applicable, may continue to seek
reimbursement for such Nonrecoverable Advance solely from collections of
principal or may seek reimbursement for such Nonrecoverable Advance from general
collections, in each case for a period of time not to exceed an additional six
months (with such Nonrecoverable Advances being reimbursed before
Workout-Delayed Reimbursement Amounts). In the event that the Master Servicer,
the Special Servicer or the Trustee, as applicable, wishes to seek reimbursement
over time after the second six-month period discussed in the preceding sentence,
then the Master Servicer, the Special Servicer or the Trustee, as applicable,
may continue to seek reimbursement for such Nonrecoverable Advance solely from
collections of principal or may seek reimbursement for such Nonrecoverable
Advance from general collections, in either case for such a longer period of
time as agreed to by the Master Servicer, the Special Servicer or the Trustee
(as applicable) and the Directing Certificateholder (with each such applicable
party having the right to agree or disagree in its sole discretion) (with such
Nonrecoverable Advances being reimbursed before Workout-Delayed Reimbursement
Amounts). Notwithstanding the foregoing, at any time after such a determination
to obtain reimbursement over time, the Master Servicer, the Special Servicer or
the Trustee, as applicable, may, in its sole discretion, decide to obtain
reimbursement immediately. The fact that a decision to recover such
Nonrecoverable Advances over time, or not to do so, benefits some Classes of
Certificateholders to the detriment of other Classes shall not, with respect to
the Master Servicer or the Special Servicer, constitute a violation of the
Servicing Standard and/or with respect to the Trustee, constitute a violation of
any fiduciary duty to Certificateholders or contractual duty hereunder. The
Master Servicer, the Special Servicer or the Trustee, as applicable, will give
each Rating Agency three weeks prior notice of its intent to obtain
reimbursement of Nonrecoverable Advances from interest collections as described
above unless (1) the Master Servicer or Special Servicer (or Trustee, if
applicable) determines in its sole discretion that waiting three weeks after
such a notice could jeopardize the Master Servicer's or the Special Servicer's
(or Trustee's, if applicable) ability to recover Nonrecoverable Advances, (2)
changed circumstances or new or different information becomes known to the
Master Servicer or Special Servicer (or Trustee, if applicable) that could
affect or cause a determination of whether any Advance is a Nonrecoverable
Advance, whether to defer reimbursement of a Nonrecoverable Advance or the
determination in clause (1) of this paragraph, or (3) the Master Servicer or
Special Servicer has not timely received from the Trustee information requested
by the Master Servicer or Special Servicer to consider in determining whether to
defer reimbursement of a Nonrecoverable Advance; provided that, if clause (1),
(2) or (3) of this paragraph applies, the Master Servicer or Special Servicer
(or Trustee, if applicable) shall give each Rating Agency notice of an
anticipated reimbursement to it of Nonrecoverable Advances from amounts in the
Certificate Account allocable to interest on the Mortgage Loans as soon as
reasonably practicable in such circumstances. The Master Servicer or Special
Servicer (or Trustee, if applicable) shall have no liability for any loss,
liability or expense resulting from any notice provided to each Rating Agency
contemplated by the immediately preceding sentence.
If the Master Servicer, the Special Servicer or the Trustee, as
applicable, is reimbursed out of general collections for any unreimbursed
Advances that are determined to be Nonrecoverable Advances (together with any
interest accrued and payable thereon), then (for purposes of calculating
distributions on the Certificates) such reimbursement and payment of interest
shall be deemed to have been made: first, out of the Principal Distribution
Amount, that, but for its application to reimburse a Nonrecoverable Advance
and/or to pay interest thereon, would be included in the Available Distribution
Amount for any subsequent Distribution Date, and second, out of other amounts
that, but for their application to reimburse a Nonrecoverable Advance and/or to
pay interest thereon, would be included in the Available Distribution Amount for
any subsequent Distribution Date.
If and to the extent that any payment is deemed to be applied as
contemplated in the paragraph above to reimburse a Nonrecoverable Advance or to
pay interest thereon, then the Principal Distribution Amount for such
Distribution Date shall be reduced, to not less than zero, by the amount of such
reimbursement. If and to the extent (i) any Advance is determined to be a
Nonrecoverable Advance, (ii) such Advance and/or interest thereon is reimbursed
out of the Principal Distribution Amount as contemplated above and (iii) the
particular item for which such Advance was originally made is subsequently
collected out of payments or other collections in respect of the related
Mortgage Loan, then the Principal Distribution Amount for the Distribution Date
that corresponds to the Collection Period in which such item was recovered shall
be increased by an amount equal to the lesser of (A) the amount of such item and
(B) any previous reduction in the Principal Distribution Amount for a prior
Distribution Date as contemplated in the paragraph above resulting from the
reimbursement of the subject Advance and/or the payment of interest thereon.
To the extent a Nonrecoverable Advance with respect to a Mortgage
Loan is required to be reimbursed from the principal portion of the general
collections on the Mortgage Loans pursuant to this Section 3.05(a), such
reimbursement shall be made first, from the principal collections available on
the Mortgage Loans included in the same Loan Group as such Mortgage Loan and if
the principal collections in such Loan Group are not sufficient to make such
reimbursement in full, then from the principal collections available in the
other Loan Group (after giving effect to any reimbursement of Nonrecoverable
Advances related to such other Loan Group). To the extent the Principal
Distribution Amount for a Distribution Date is increased as set forth in
preceding paragraph, such increase shall be allocated first to the principal
collections in the Loan Group with respect to which the Mortgage Loan as to
which the related Nonrecoverable Advance was made does not belong, and then to
the Loan Group with respect to which the Mortgage Loan as to which the related
Nonrecoverable Advance was made does belong.
If one or more unreimbursed Workout-Delayed Reimbursement Amounts
exist, then such Workout-Delayed Reimbursement Amounts will be reimbursable only
from amounts in the Certificate Account that represent collections of principal
on the Mortgage Loans (net of any collections of principal applied to
reimbursement of Nonrecoverable Advances or interest thereon); provided,
however, on any Distribution Date when (1) less than 10% of the initial
aggregate Stated Principal Balance of the Mortgage Pool is outstanding and (2)
the sum of the aggregate unpaid Nonrecoverable Advances plus the aggregate
unpaid Workout-Delayed Reimbursement Amounts that have not been reimbursed to
the Master Servicer, Special Servicer or Trustee, as applicable, exceeds 20% of
the aggregate Stated Principal Balance of the Mortgage Pool then outstanding,
then the Master Servicer, the Special Servicer or the Trustee, as applicable,
may obtain reimbursement of any outstanding Workout-Delayed Reimbursement Amount
from principal collections or any other amounts in the Certificate Account,
including but not limited to interest collected on the Mortgage Loans, if
principal is not sufficient to pay such amounts; provided, further, however, the
foregoing shall not in any manner limit the right of the Master Servicer, the
Special Servicer or the Trustee, as applicable, to choose voluntarily to seek
reimbursement of Workout-Delayed Reimbursement Amounts solely from collections
of principal. The Master Servicer, the Special Servicer or the Trustee, as
applicable, will give each Rating Agency three weeks prior notice of its intent
to obtain reimbursement of Workout-Delayed Reimbursement Amounts from interest
collections as described in the preceding sentence.
If the Master Servicer, the Special Servicer or the Trustee, as
applicable, is reimbursed out of general collections for any Workout-Delayed
Reimbursement Amounts, then (for purposes of calculating distributions on the
Certificates) such reimbursement and payment of interest shall be deemed to have
been made: first, out of the Principal Distribution Amount, that, but for its
application to reimburse a Workout-Delayed Reimbursement Amount, would be
included in the Available Distribution Amount for any subsequent Distribution
Date, and second, out of other amounts that, but for their application to
reimburse a Workout-Delayed Reimbursement Amount, would be included in the
Available Distribution Amount for any subsequent Distribution Date.
If and to the extent that any payment is deemed to be applied as
contemplated in the paragraph above to reimburse a Workout-Delayed Reimbursement
Amount, then the Principal Distribution Amount for such Distribution Date shall
be reduced, to not less than zero, by the amount of such reimbursement. If and
to the extent (i) such Workout-Delayed Reimbursement Amount is reimbursed out of
the Principal Distribution Amount as contemplated above and (ii) the particular
item for which such Workout-Delayed Reimbursement Amount was originally made is
subsequently collected out of payments or other collections in respect of the
related Mortgage Loan, then the Principal Distribution Amount for the
Distribution Date that corresponds to the Collection Period in which such item
was recovered shall be increased by an amount equal to the lesser of (A) the
amount of such item and (B) any previous reduction in the Principal Distribution
Amount for a prior Distribution Date as contemplated in the paragraph above
resulting from the reimbursement of the subject Workout-Delayed Reimbursement
Amount.
To the extent a Workout-Delayed Reimbursement Amount with respect to
a Mortgage Loan is required to be reimbursed from the principal portion of the
general collections on the Mortgage Loans pursuant to clause (vii) of this
Section 3.05(a), such reimbursement shall be made first, from the principal
collections available on the Mortgage Loans included in the same Loan Group as
such Mortgage Loan and, if the principal collections in such Loan Group are not
sufficient to make such reimbursement in full, then from the principal
collections available in the other Loan Group (after giving effect to any
reimbursement of Nonrecoverable Advances related to such other Loan Group). To
the extent the Principal Distribution Amount for a Distribution Date is
increased as set forth in preceding paragraph, such increase shall be allocated
first to the principal collections in the Loan Group with respect to which the
Mortgage Loan as to which the related Workout-Delayed Reimbursement Amount was
reimbursed does not belong, and then to the Loan Group with respect to which the
Mortgage Loan as to which the related Workout-Delayed Reimbursement Amount was
reimbursed does belong.
For the avoidance of doubt, notwithstanding anything contained in
this Agreement to the contrary, the right of any Person hereunder to recover
amounts owing with respect to a Whole Loan from the Certificate Account and/or
the related Whole Loan Custodial Account shall be without duplication.
(b) The Trustee may, from time to time, make withdrawals from the
REMIC I Distribution Account for any of the following purposes (the order set
forth below not constituting an order of priority for such withdrawals):
(i) to be deemed to transfer from the REMIC I Distribution Account
to the REMIC II Distribution Account on or before the related Distribution
Date the Available Distribution Amount as provided in Section 4.01(a)(ii)
and Prepayment Premiums to be distributed in respect of the REMIC I
Regular Interests, as contemplated by Section 4.01(c)(i) and to make
distributions to the Class R-I Certificates pursuant to Section
4.01(c)(iii) or Section 9.01, as applicable;
(ii) to pay the Trustee accrued and unpaid Trustee Fees pursuant to
Section 8.05(a) and to reimburse the Trustee for any other amounts to
which it is entitled to be reimbursed from the Distribution Account
pursuant to this Agreement;
(iii) to pay the Trustee or any of its respective directors,
officers, employees and agents, as the case may be, any amounts payable or
reimbursable to any such Person pursuant to Section 8.05(b);
(iv) as contemplated by Section 12.01(h), to pay for the reasonable
costs of the Opinions of Counsel sought by the Trustee as contemplated by
Section 12.01(a) or 12.01(d) in connection with any amendment to this
Agreement requested by the Trustee, provided such amendment is in
furtherance of the rights and interests of Certificateholders;
(v) to pay for the reasonable costs of the Opinions of Counsel
sought by the Trustee as contemplated by Section 12.02(a);
(vi) to (A) pay any and all federal, state and local taxes imposed
on REMIC I or REMIC II or on the assets or transactions of any such REMIC,
together with all incidental costs and expenses, and any and all
reasonable expenses relating to tax audits, if and to the extent that
either (1) none of the Trustee, the Master Servicer, the Special Servicer
or the REMIC Administrator is liable therefor pursuant to Section 10.01(d)
and/or Section 10.01(h) or (2) any such Person that may be so liable has
failed to timely make the required payment, and (B) reimburse the REMIC
Administrator for reasonable expenses incurred by and reimbursable to it
by the Trust pursuant to Section 10.01(d) and/or Section 10.01(h); and
(vii) to clear and terminate the REMIC I Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
Taxes imposed on REMIC I or REMIC II shall be allocated to the
related REMIC.
(c) The Trustee shall be deemed to make withdrawals from the REMIC
II Distribution Account for any of the following purposes: (i) to make
distributions to Certificateholders (other than Holders of the Class A-2FL,
Class A-JFL, Class V and Class R-I Certificates) on each Distribution Date
pursuant to Section 4.01(b), Section 4.01(c)(i) or Section 9.01, as applicable,
to make distributions to the Class A-2FL Floating Rate Account with respect to
the Class A-2FL Regular Interest pursuant to this Agreement and to make
distributions to the Class A-JFL Floating Rate Account with respect to the Class
A-JFL Regular Interest pursuant to this Agreement; and (ii) to clear and
terminate the REMIC II Distribution Account at the termination of this Agreement
pursuant to Section 9.01.
(d) On each Distribution Date, the Trustee shall withdraw from the
Excess Liquidation Proceeds Account and deposit into the Distribution Account,
for distribution on such Distribution Date, an amount equal to the lesser of (i)
the entire amount, if any, then on deposit in the Excess Liquidation Proceeds
Account and (ii) the excess, if any, of the aggregate amount distributable on
such Distribution Date pursuant to Section 4.01(a) and Section 4.01(b), over the
Available Distribution Amount for such Distribution Date (calculated without
regard to such transfer from the Excess Liquidation Proceeds Account to the
Distribution Account); provided that on the Business Day prior to the Final
Distribution Date, the Trustee shall withdraw from the Excess Liquidation
Proceeds Account and deposit into the Distribution Account, for distribution on
such Distribution Date, any and all amounts then on deposit in the Excess
Liquidation Proceeds Account.
(e) The Trustee, the Depositor, the Master Servicer and the Special
Servicer shall in all cases have a right prior to the Certificateholders to any
particular funds on deposit in the Certificate Account and the Distribution
Account from time to time for the reimbursement or payment of compensation,
Advances (with interest thereon at the Reimbursement Rate) and their respective
expenses hereunder, but only if and to the extent such compensation, Advances
(with interest) and expenses are to be reimbursed or paid from such particular
funds on deposit in the Certificate Account or the Distribution Account pursuant
to the express terms of this Agreement.
(f) The Master Servicer may (and, with respect to clause (i),
shall), from time to time, make withdrawals from each Whole Loan Custodial
Account, for any of the following purposes (the order set forth below not
constituting an order of priority for such withdrawals):
(i) to make remittances each month no later than the Master Servicer
Remittance Date, in an aggregate amount of immediately available funds
equal to the applicable portion of the Whole Loan Remittance Amount, to
the related Companion Loan Holder and to the Certificate Account for the
benefit of the Trust (as holder of the related Mortgage Loan or any
related REO Loan), in accordance with the related Intercreditor Agreement;
provided, however, any Liquidation Proceeds relating to any repurchase of
the Companion Loan related to a Whole Loan by the related seller thereof
shall be remitted solely to the related Companion Loan Holder and
Liquidation Proceeds relating to the repurchase of a Mortgage Loan related
to a Whole Loan by the related Mortgage Loan Seller shall be remitted
solely to the Certificate Account; provided that any Liquidation Proceeds
related to a sale pursuant to Section 3.18 or pursuant to the related
Intercreditor Agreement of a Mortgage Loan included in a Whole Loan shall
be deposited directly into the Certificate Account and applied solely to
pay expenses relating to that Mortgage Loan and to the Available
Distribution Amount, and any Liquidation Proceeds related to a sale
pursuant to Section 3.18 of a Companion Loan shall be deposited into the
related Whole Loan Custodial Account and applied solely to pay expenses
relating to such Companion Loan and to pay amounts due to the related
Companion Loan Holder;
(ii) to reimburse the Master Servicer or the Trustee, as applicable,
for xxxxxxxxxxxx X&X Advances made with respect to such Mortgage Loan or,
in the case of the Trustee, with respect to the related Mortgage Loan (in
each case, with its own funds), as the case may be, respective rights to
reimbursement pursuant to this clause (ii) with respect to any P&I Advance
(other than Nonrecoverable P&I Advances, which are reimbursable pursuant
to clause (vii) of this Section 3.05(f)) or principal and/or interest
advance being limited to amounts that represent Late Collections of
interest and principal received in respect of the particular Whole Loan as
to which such P&I Advance or principal and/or interest advance was made
(net of related Master Servicing Fees and/or Workout Fees);
(iii) to pay to the Master Servicer earned and unpaid Master
Servicing Fees in respect of such Whole Loan and related REO Loan, the
Master Servicer's right to payment pursuant to this clause (iii) with
respect to any Whole Loan or REO Loan being payable from, and limited to,
amounts received on or in respect of such Whole Loan (whether in the form
of payments, Liquidation Proceeds, Condemnation Proceeds or Insurance
Proceeds) or such REO Loan (whether in the form of REO Revenues,
Liquidation Proceeds or Insurance Proceeds) that are allocable as a
recovery of interest thereon;
(iv) to pay to the Special Servicer, out of general collections on
such Whole Loan and related REO Properties, earned and unpaid Special
Servicing Fees in respect of such Whole Loan and related REO Properties;
(v) to pay to the Special Servicer earned and unpaid Workout Fees
and Liquidation Fees to which it is entitled pursuant to, and from the
sources contemplated by, Section 3.11(c);
(vi) to reimburse itself, the Special Servicer or the Trustee, as
applicable, for any unreimbursed Servicing Advances with respect to such
Whole Loan or related REO Property made thereby (in each case, with its
own funds), the Master Servicer's, the Special Servicer's and the
Trustee's, as the case may be, respective rights to reimbursement pursuant
to this clause (vi) with respect to any Servicing Advance (other than
Nonrecoverable Servicing Advances, which are reimbursable pursuant to
clause (vii) of this Section 3.05(f)) being limited to (A) payments made
by the related Mortgagor that are allocable to cover the item in respect
of which such Servicing Advance was made, and (B) Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds and, if applicable, REO
Revenues received in respect of such Whole Loan or REO Property as to
which such Servicing Advance was made;
(vii) to reimburse the Master Servicer, the Special Servicer or the
Trustee, as applicable, out of general collections on such Whole Loan or
REO Property, for any unreimbursed related Advances made thereby that have
been determined to be Nonrecoverable Advances;
(viii) to pay the Trustee, the Master Servicer, or the Special
Servicer as applicable, any Advance Interest due and owing thereto out of
Default Charges collected on such Whole Loan the portion of Default
Charges allocated thereto in the related Intercreditor Agreement, as and
to the extent contemplated by Section 3.27;
(ix) to the extent that, during any Collection Period, the Master
Servicer has reimbursed or is reimbursing itself, the Special Servicer or
the Trustee, as applicable, for any unreimbursed Advance pursuant to
clause (ii), (vi) or (vii) of this Section 3.05(f) or pursuant to Section
3.03, and insofar as payment has not already been made, and the Default
Charges then on deposit in such Whole Loan Custodial Account is not
sufficient to make such payment pursuant to clause (viii) of this Section
3.05(f), to pay the Master Servicer, the Special Servicer or the Trustee,
as the case may be, out of general collections on such Whole Loan and
related REO Property, any related Advance Interest accrued and payable on
the portion of such Advance so reimbursed or being reimbursed;
(x) to pay any outstanding expense, other than Advance Interest,
that was incurred with respect to such Whole Loan and that, if paid from a
source other than Default Charges collected on such Whole Loan, would
constitute an Additional Trust Fund Expense, such payment to be made out
of Default Charges collected on such Whole Loan, as and to the extent
contemplated by Section 3.27;
(xi) to pay itself any items of Additional Master Servicing
Compensation, and to pay to the Special Servicer any items of Additional
Special Servicing Compensation to which it is entitled, in each case with
respect to such Whole Loan from funds collected on such Whole Loan that
are on deposit in such Whole Loan Custodial Account from time to time;
(xii) to pay any unpaid Liquidation Expenses incurred with respect
to such Whole Loan or REO Property, such payments to be made, first, out
of payments, Insurance Proceeds, Condemnation Proceeds or Liquidation
Proceeds and, if applicable, REO Revenues received in respect of such
Whole Loan or REO Property, as the case may be, and then, out of general
collections on such Whole Loan or REO Property;
(xiii) to pay, in accordance with Section 3.11(i), out of general
collections on such Whole Loan and REO Property, certain servicing
expenses with respect to such Whole Loan that would, if advanced,
constitute Nonrecoverable Servicing Advances;
(xiv) to pay, out of general collections on such Whole Loan and REO
Property, costs and expenses incurred by the related Companion Loan Holder
pursuant to Section 3.09(c) (other than the costs of environmental
testing, which are to be covered by, and reimbursable as, a Servicing
Advance);
(xv) to pay itself, the Special Servicer, the Depositor, the Trustee
or any of their respective directors, officers, members, managers,
employees and agents, as the case may be, out of general collections on
such Whole Loan or REO Property, any amounts payable to any such Person
pursuant to Section 6.03, Section 7.01(b) or Section 8.05(b), as
applicable, with respect to such Whole Loan;
(xvi) [RESERVED];
(xvii) to pay, out of general collections on such Whole Loan and REO
Property, any reasonable out-of-pocket cost or expense (including the
reasonable fees of tax accountants and attorneys) incurred by the Trustee
pursuant to Section 3.17(b) in connection with providing advice to the
Special Servicer with respect to such Whole Loan;
(xviii) to pay to the Master Servicer, the Special Servicer, the
Trustee or the Depositor, as the case may be, to the extent that such
amount is related to the Mortgage Loan included in such Whole Loan, any
amount specifically required to be paid to such Person at the expense of
the Trust Fund under any provision of this Agreement to which reference is
not made in any other clause of this Section 3.05(f), it being
acknowledged that this clause (xviii) shall not be construed to modify any
limitation otherwise set forth in this Agreement on the time at which any
Person is entitled to payment or reimbursement of any amount or the funds
from which any such payment or reimbursement is permitted to be made;
(xix) to pay the Master Servicer, the Special Servicer, the related
Mortgage Loan Seller, a Controlling Class Certificateholder or any other
particular Person, as the case may be, (i) with respect to the Mortgage
Loan related to such Whole Loan, if any, previously purchased or otherwise
removed from the Trust Fund by such Person pursuant to or as contemplated
by this Agreement or (ii) with respect to any Companion Loan related to
such Whole Loan purchased by such Person pursuant to or as contemplated by
the related Intercreditor Agreement or this Agreement, all amounts
received thereon subsequent to the date of purchase, to the extent payable
in respect of such Loan;
(xx) to transfer Excess Liquidation Proceeds related to the Mortgage
Loan included in such Whole Loan to the Excess Liquidation Proceeds
Account in accordance with Section 3.04(e);
(xxi) to withdraw any amounts deposited into such Whole Loan
Custodial Account in error; and
(xxii) to clear and terminate such Whole Loan Custodial Account at
the termination of this Agreement pursuant to Section 9.01.
If amounts on deposit in such Whole Loan Custodial Account at any
particular time (after withdrawing any portion of such amounts deposited into
such Whole Loan Custodial Account in error) are insufficient to satisfy all
payments, reimbursements and remittances to be made therefrom as set forth in
clauses (ii) through (xx) of this Section 3.05(f), then the corresponding
withdrawals from such Whole Loan Custodial Account shall be made in the
following priority and subject to the following rules: (A) if the payment,
reimbursement or remittance is to be made from a specific source of funds, then
such payment, reimbursement or remittance shall be made from that specific
source of funds on a pro rata basis with any and all other payments,
reimbursements and remittances to be made from such specific source of funds;
and (B) if the payment, reimbursement or remittance can be made from any funds
on deposit in such Whole Loan Custodial Account, then (following any withdrawals
made from such Whole Loan Custodial Account in accordance with the immediately
preceding clause (A) of this paragraph) such payment, reimbursement or
remittance shall be made from such general funds remaining on a pro rata basis
with any and all other payments, reimbursements or remittances to be made from
such general funds; provided that any reimbursements of Advances in respect of
such Whole Loan or REO Property out of such Whole Loan Custodial Account
pursuant to any of clauses (ii), (vi) and (vii) of this Section 3.05(f), and any
payments of interest thereon out of such Whole Loan Custodial Account pursuant
to either of clauses (viii) and (ix) of this Section 3.05(f), shall be made (to
the extent of their respective entitlements to such reimbursements and/or
payments): first, to the Trustee; and second, pro rata, to the Master Servicer
and Special Servicer; provided, further with respect to a Whole Loan that is an
A/B Loan, any such reimbursements shall be made from funds otherwise allocable
to the related Note B prior to being reimbursed from funds allocable to the
related Mortgage Loan.
The Master Servicer shall also be entitled to make withdrawals from
time to time, from the Whole Loan Custodial Account of amounts necessary for the
payments or reimbursement of amounts required to be paid with respect to a
Non-Serviced Companion Loan to the master servicer, the special servicer and the
trustee under the Non-Serviced Pooling and Servicing Agreement pursuant to the
applicable Intercreditor Agreement.
Notwithstanding anything to the contrary in this Section 3.05(f),
the Master Servicer acknowledges its obligations under the related Intercreditor
Agreement to remit funds thereunder then due and owing to the holder of the
Companion Loan related to such Whole Loan in the time frames set forth therein.
The Master Servicer and the Special Servicer, as applicable, shall
notify the Trustee in writing of any transfer of the Companion Loan related to a
Whole Loan, specifically identifying the name, address and contact information
of the transferee if the Master Servicer and the Special Servicer, as
applicable, has received actual written notice from the transferee of such
transferee's name, address and contact information.
Notwithstanding anything contained in this Agreement to the
contrary, the Master Servicer or the Special Servicer, as applicable, shall be
permitted (but shall have no affirmative obligation whatsoever or be otherwise
required under this Agreement) to structure the time of recoveries of
Nonrecoverable Advances in such a manner as the Master Servicer or the Special
Servicer, as applicable, determines, in accordance with the Servicing Standard,
is in the best interest of the Certificateholders as a collective whole, which
may include being reimbursed for Nonrecoverable Advances in installments over
time.
(g) If any Loss of Value Payments are deposited into the Loss of
Value Reserve Fund with respect to any Loan or any related REO Property, then
the Special Servicer shall, promptly when needed, transfer such Loss of Value
Payments (up to the remaining portion thereof) from the Loss of Value Reserve
Fund to the Master Servicer for deposit into the Certificate Account for the
following purposes:
(i) to reimburse the Master Servicer, the Special Servicer or the
Trustee, in accordance with Section 3.05(a), for any Nonrecoverable
Advance made by such party with respect to such Loan or any related REO
Property (together with interest thereon);
(ii) to pay, in accordance with Section 3.05(a), or to reimburse the
Trust for the prior payment of, any expense relating to such Loan or any
related REO Property that constitutes or, if not paid out of such Loss of
Value Payments, would constitute an Additional Trust Fund Expense;
(iii) to offset any Realized Loss (as calculated without regard to
the application of such Loss of Value Payments) incurred with respect to
such Loan or any successor REO Loan with respect thereto;
(iv) following the occurrence of a liquidation event or other
disposition with respect to such Mortgage Loan or any related REO
Property, to cover the items contemplated by the immediately preceding
clauses (i) through (iii) of this Section 3.05(g) in respect of any other
Loan or REO Loan; and
(v) on the final Distribution Date after all distributions have been
made as set forth in clauses (i) through (iv) of this Section 3.05(g), to
the related Mortgage Loan Seller to offset any Realized Losses (net of any
amount contributed by the Mortgage Loan Seller that was used pursuant to
clauses (i) through (iv)) of this Section 3.05(g)).
Any Loss of Value Payments transferred to the Certificate Account
pursuant to clauses (i) through (iii) of the prior paragraph shall, except for
purposes of Section 3.11(c), be deemed to constitute Liquidation Proceeds
received by the Trust in respect of the related Loan or any successor REO Loan
with respect thereto for which such Loss of Value Payments were received; and
any Loss of Value Payments transferred to the Certificate Account pursuant to
clause (iv) of the prior paragraph shall, except for purposes of Section
3.11(c), be deemed to constitute Liquidation Proceeds received by the Trust in
respect of the Loan or REO Loan for which such Loss of Value Payments are being
transferred to the Certificate Account to cover an item contemplated by clauses
(i) through (iii) of the prior paragraph.
On the Business Day immediately prior to the Master Servicer
Remittance Date related to the final Distribution Date, the Special Servicer
shall withdraw from the Loss of Value Reserve Fund and transfer to the Master
Servicer, for deposit in the Certificate Account, any Loss of Value Payments
remaining on deposit in the Loss of Value Reserve Fund. Such Loss of Value
Payments so deposited in the Certificate Account shall constitute part of the
Available Distribution Amount for the final Distribution Date, to the extent
needed to distribute to the Holders of the REMIC II Regular Certificates and the
Class A-2FL and Class A-JFL Regular Interests in accordance with Section 9.01,
all interest then payable thereto, together with the aggregate Certificate
Balance of, and all loss reimbursement amounts for such final Distribution Date
in respect of, the respective Classes of the REMIC II Regular Certificates and
the Class A-2FL and Class A-JFL Regular Interests, and otherwise shall be
distributable to the Holders of the REMIC Residual Certificates on the final
Distribution Date.
(h) The Swap Trustee shall make withdrawals from the Class A-2FL
Floating Rate Account in the following order of priority and only for the
following purposes: (i) to withdraw amounts deposited in the Class A-2FL
Floating Rate Account in error and pay such amounts to Persons entitled thereto;
(ii) out of interest amounts to make regularly scheduled payments required to be
paid to the Class A-2FL Swap Counterparty under the Class A-2FL Swap Contract as
specified in Section 3.33(c), provided there is no Class A-2FL Swap Default;
(iii) to make distributions to the Holders of the Class A-2FL Certificates
pursuant to Section 4.01(l); and (iv) to clear and terminate the Class A-2FL
Floating Rate Account pursuant to Section 9.01.
(i) The Swap Trustee shall make withdrawals from the Class A-JFL
Floating Rate Account in the following order of priority and only for the
following purposes: (i) to withdraw amounts deposited in the Class A-JFL
Floating Rate Account in error and pay such amounts to Persons entitled thereto;
(ii) out of interest amounts to make regularly scheduled payments required to be
paid to the Class A-JFL Swap Counterparty under the Class A-JFL Swap Contract as
specified in Section 3.34(c), provided there is no Class A-JFL Swap Default;
(iii) to make distributions to the Holders of the Class A-JFL Certificates
pursuant to Section 4.01(o); and (iv) to clear and terminate the Class A-JFL
Floating Rate Account pursuant to Section 9.01.
Section 3.06 Investment of Funds in the Certificate Account, the
Interest Reserve Account, the Excess Interest Distribution Account, the REMIC I
Distribution Account, the REMIC II Distribution Account, the Excess Liquidation
Proceeds Account, the Class A-2FL Floating Rate Account, the Class A-JFL
Floating Rate Account and the REO Account.
(a) The Master Servicer may direct any depository institution
maintaining the Certificate Account, the Servicing Account, the Interest Reserve
Account and each Whole Loan Custodial Account, the Special Servicer may direct
any depository institution maintaining each REO Account, and the Trustee may
direct any depository institution maintaining the REMIC I Distribution Account,
the REMIC II Distribution Account, the Excess Interest Distribution Account, the
Class A-2FL Floating Rate Account, the Class A-JFL Floating Rate Account and the
Excess Liquidation Proceeds Account to invest, or if it is such depository
institution, may itself invest, the funds held therein (each such account, for
purposes of this Section 3.06, an "Investment Account") only in one or more
Permitted Investments bearing interest or sold at a discount, and maturing,
unless payable on demand, no later than the Business Day immediately preceding
the next succeeding date on which such funds are required to be withdrawn from
such account pursuant to this Agreement (or (i) in the case of the Class A-2FL
Floating Rate Account, maturing no later than the Business Day immediately
preceding the next succeeding date on which such funds are required to be
withdrawn therefrom and paid to the Class A-2FL Swap Counterparty and (ii) in
the case of the Class A-JFL Floating Rate Account, maturing no later than the
Business Day immediately preceding the next succeeding date on which such funds
are required to be withdrawn therefrom and paid to the Class A-JFL Swap
Counterparty). All such Permitted Investments shall be held to maturity, unless
payable on demand, in which case such investments may be sold at any time. Any
investment of funds in an Investment Account shall be made in the name of the
Trustee for the benefit of the Certificateholders and, in the case of a
Permitted Investment in any Investment Account solely related to a Whole Loan,
the related Companion Loan Holder (in its capacity as such). The Master Servicer
(with respect to Permitted Investments of amounts in the Certificate Account,
the Interest Reserve Account, each Whole Loan Custodial Account and the
Servicing Account) and the Special Servicer (with respect to Permitted
Investments of amounts in each REO Account), on behalf of the Trustee for the
benefit of the Certificateholders and in the case of any Investment Account
solely related to a Whole Loan, the related Companion Loan Holder, and the
Trustee (with respect to the Excess Liquidation Proceeds Account, the REMIC I
Distribution Account, the REMIC II Distribution Account, the Class A-2FL
Floating Rate Account, the Class A-JFL Floating Rate Account and the Excess
Interest Distribution Account), on behalf of the Certificateholders, shall (and
the Trustee hereby designates the Master Servicer, the Special Servicer or
itself, as applicable, as the Person that shall) (i) be the "entitlement holder"
of any Permitted Investment that is a "security entitlement" and (ii) maintain
"control" of any Permitted Investment that is either a "certificated security"
or an "uncertificated security". For purposes of this Section 3.06(a), the terms
"entitlement holder", "security entitlement", "control", "certificated security"
and "uncertificated security" shall have the meanings given such terms in
Revised Article 8 (1994 Revision) of the UCC, and "control" of any Permitted
Investment by the Master Servicer or the Special Servicer shall constitute
"control" by a Person designated by, and acting on behalf of, the Trustee for
purposes of Revised Article 8 (1994 Revision) of the UCC. If amounts on deposit
in an Investment Account are at any time invested in a Permitted Investment
payable on demand, the Master Servicer (in the case of the Certificate Account,
the Interest Reserve Account, each Whole Loan Custodial Account and the
Servicing Account) or the Special Servicer (in the case of each REO Account) and
the Trustee (in the case of the Excess Interest Distribution Account, the Excess
Liquidation Proceeds Account, the REMIC I Distribution Account, the Class A-2FL
Floating Rate Account, the Class A-JFL Floating Rate Account and the REMIC II
Distribution Account) shall:
(i) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to the lesser
of (1) all amounts then payable thereunder and (2) the amount required to
be withdrawn on such date; and
(ii) demand payment of all amounts due thereunder promptly upon
determination by the Master Servicer, the Special Servicer or the Trustee,
as the case may be, that such Permitted Investment would not constitute a
Permitted Investment in respect of funds thereafter on deposit in the
Investment Account.
(b) Whether or not the Master Servicer directs the investment of
funds in the Certificate Account, the Interest Reserve Account, each Whole Loan
Custodial Account and the Servicing Account, interest and investment income
realized on funds deposited therein, to the extent of the Net Investment
Earnings, if any, for each such Investment Account for each Collection Period,
shall be for the sole and exclusive benefit of the Master Servicer and shall be
subject to its withdrawal in accordance with Section 3.05(a) or Section 3.05(f),
as applicable. Whether or not the Special Servicer directs the investment of
funds in each REO Account, interest and investment income realized on funds
deposited therein, to the extent of the Net Investment Earnings, if any, for
such Investment Account for each Collection Period, shall be for the sole and
exclusive benefit of the Special Servicer and shall be subject to its withdrawal
in accordance with Section 3.16(b). Whether or not the Trustee directs the
investment of funds in the Excess Interest Distribution Account, the Excess
Liquidation Proceeds Account, the REMIC I Distribution Account, the Class A-2FL
Floating Rate Account, the Class A-JFL Floating Rate Account and the REMIC II
Distribution Account, interest and investment income realized on funds deposited
therein, to the extent of Net Investment Earnings, if any, for each such
Investment Account for each Collection Period, shall be for the sole and
exclusive benefit of the Trustee and shall be subject to withdrawal by the
Trustee. If any loss shall be incurred in respect of any Permitted Investment on
deposit in any Investment Account, the Master Servicer (in the case of the
Certificate Account, the Interest Reserve Account, the Class A-2FL Floating Rate
Account, the Class A-JFL Floating Rate Account, each Whole Loan Custodial
Account and the Servicing Account (with respect to funds invested by the Master
Servicer for its own account)), the Special Servicer (in the case of each REO
Account) and the Trustee (in the case of the Excess Interest Distribution
Account, the Excess Liquidation Proceeds Account, the REMIC I Distribution
Account and the REMIC II Distribution Account) shall promptly deposit therein
from its own funds, without right of reimbursement, no later than the end of the
Collection Period during which such loss was incurred, the amount of the Net
Investment Loss, if any, for such Collection Period. The Trustee shall have no
liability whatsoever with respect to any such losses, except in respect to
losses incurred in respect of any Permitted Investment on deposit in the Excess
Interest Distribution Account, the Excess Liquidation Proceeds Account, the
REMIC I Distribution Account, the Class A-2FL Floating Rate Account, the Class
A-JFL Floating Rate Account and the REMIC II Distribution Account; and to the
extent that it is the obligor on any such Permitted Investment.
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment and the Master Servicer or the Special Servicer, as applicable, has
not taken such action, the Trustee may and, subject to Section 8.02, upon the
request of Holders of Certificates entitled to not less than 25% of the Voting
Rights allocated to any Class, shall take such action as may be appropriate to
enforce such payment or performance, including, without limitation, the
institution and prosecution of appropriate proceedings.
(d) Notwithstanding the investment of funds held in any Investment
Account, for purposes of the calculations hereunder, including, without
limitation, the calculation of the Available Distribution Amount and the Master
Servicer Remittance Amount, the amounts so invested (but not any interest earned
thereon) shall be deemed to remain on deposit in such Investment Account.
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage.
(a) In the case of each Serviced Loan, the Master Servicer shall use
reasonable efforts consistent with the Servicing Standard to cause each
Mortgagor to maintain, and, if the Mortgagor does not so maintain, the Master
Servicer will itself cause to be maintained, for each Mortgaged Property
(including each Mortgaged Property relating to any Specially Serviced Loan) all
insurance coverage as is required, subject to applicable law, under the related
loan documents; provided that, if and to the extent that any such loan documents
permit the holder thereof any discretion (by way of consent, approval or
otherwise) as to the insurance coverage that the related Mortgagor is required
to maintain, the Master Servicer shall exercise such discretion in a manner
consistent with the Servicing Standard and, prior to the date such existing
insurance expires or is required to be renewed, the Master Servicer may, to the
extent consistent with the Servicing Standard, take into account insurance in
place at loan origination, with a view towards requiring insurance comparable to
that required under other Serviced Loans with express provisions governing such
matters and including business interruption or rental loss insurance for at
least 12 months; and provided, further, the Master Servicer shall be required to
maintain such insurance coverage upon the related Mortgagor's failure to do so
only to the extent that such insurance is available at commercially reasonable
rates and the Trustee, on behalf of the Trust, as mortgagee has an insurable
interest. Subject to Section 3.17(b), the Special Servicer shall also cause to
be maintained for each REO Property (other than with respect to any REO Property
related to a Non-Serviced Loan) no less insurance coverage (to the extent
available at commercially reasonable rates) (A) than was previously required of
the related Mortgagor under the related loan documents and (B), at a minimum,
(i) hazard insurance with a replacement cost rider, (ii) business interruption
or rental loss insurance for at least 12 months, and (iii) commercial general
liability insurance, in each case, in an amount customary for the type and
geographic location of such REO Property and consistent with the Servicing
Standard; provided that all such insurance required to be maintained by Master
Servicer or Special Servicer shall be obtained from Qualified Insurers that, in
each case, shall have a financial strength or claims-paying rating no lower than
two rating categories below the highest rated Certificates outstanding, and in
any event no lower than "A" from Fitch and "A" from S&P (or in such other form
and amount or issued by an insurer with such other financial strength or
claims-paying ability as would not, as confirmed in writing by the relevant
Rating Agency, result in an Adverse Rating Event. All such insurance policies
shall contain (if they insure against loss to property) a "standard" mortgagee
clause, with loss payable to the Master Servicer on behalf of the Trustee (in
the case of insurance maintained in respect of the Mortgage Loans), or shall
name the Trustee (and in the case of a Whole Loan, the related Companion Loan
Holder) as the insured, with loss payable to the Special Servicer on behalf of
the Trustee (and in the case of a Whole Loan, the related Companion Loan Holder)
(in the case of insurance maintained in respect of REO Properties), and shall be
issued by an insurer authorized under applicable law to issue such insurance,
and, unless prohibited by the related Mortgage, may contain a deductible clause
(not in excess of a customary amount). Any amounts collected by the Master
Servicer or Special Servicer under any such policies (other than amounts to be
applied to the restoration or repair of the related Mortgaged Property or REO
Property or amounts to be released to the related Mortgagor, in each case in
accordance with the Servicing Standard) shall be deposited into the Certificate
Account, or, if a Whole Loan is involved, the related Whole Loan Custodial
Account, subject to withdrawal pursuant to Section 3.05(a), or Section 3.05(f),
as applicable in the case of amounts received in respect of a Serviced Loan, or
in the applicable REO Account, subject to withdrawal pursuant to Section
3.16(c), in the case of amounts received in respect of an REO Property. Any cost
incurred by the Master Servicer or Special Servicer in maintaining any such
insurance shall not, for purposes hereof, including calculating monthly
distributions to Certificateholders, be added to unpaid principal balance or
Stated Principal Balance of the related Serviced Loan, notwithstanding that the
terms of such Serviced Loan so permit; provided, however, this sentence shall
not limit the rights of the Master Servicer or Special Servicer on behalf of the
Trust or, if a Whole Loan is involved, on behalf of the related Companion Loan
Holder, to enforce any obligations of the related Mortgagor under such Serviced
Loan. Costs to the Master Servicer or Special Servicer of maintaining insurance
policies pursuant to this Section 3.07 shall be paid by and reimbursable to the
Master Servicer or the Special Servicer, as the case may be, as a Servicing
Advance.
If the related loan documents specifically and expressly set forth
terms requiring insurance coverage against terrorist or similar acts for a
Serviced Loan, then the Master Servicer and the Special Servicer shall enforce
the terms of the related loan documents in accordance with the Servicing
Standard, and if the Mortgagor fails to maintain such insurance, such failure
shall constitute a Servicing Transfer Event. To the extent the loan documents do
not set forth specific terms requiring insurance coverage against terrorist or
similar acts and a Serviced Loan (x) requires a Mortgagor to maintain insurance
policies covering some or all of the risks contained in the Additional
Exclusions or (y) in accordance with the Servicing Standard, the Master Servicer
has determined (in consultation with the Special Servicer and the Directing
Certificateholder) that the loan documents permit the lender to require the
Mortgagor to maintain insurance policies covering some or all the risks
contained in the Additional Exclusions (the covered risks required to be covered
or that the lender has the discretion to require to be covered being referred to
as "Covered Risks"), the Master Servicer shall use reasonable efforts in
accordance with the Servicing Standard to determine whether, upon renewal of the
Mortgagor's property or casualty insurance (including any all risk insurance
policy), any of the Covered Risks are excluded from coverage. If any of the
Covered Risks are determined by the Master Servicer to be excluded from
coverage, the Master Servicer shall request the Mortgagor to either (i) purchase
insurance acceptable to the Master Servicer in accordance with the Servicing
Standard and in accordance with the related loan documents covering such Covered
Risks or (ii) provide a written explanation as to its reasons for failing to
purchase such insurance. Notwithstanding the foregoing, with the written consent
of the Special Servicer in accordance with the Servicing Standard the Master
Servicer may waive the requirement to procure insurance covering any of the
Covered Risks if the Master Servicer determines in accordance with the Servicing
Standard that (1) insurance covering any such Covered Risks is not available at
a commercially reasonable price, or (2) based on information reasonably
available to the Master Servicer, after due inquiry, any such Covered Risks are
at that time not commonly insured against for properties similar to the
Mortgaged Property and located in or around the region in which the Mortgaged
Property is located unless the Stated Principal Balance of the Serviced Loan is
greater than $20,000,000. If the Stated Principal Balance of the Serviced Loan
is greater than $20,000,000, then the Master Servicer must determine that the
circumstances in both clauses (1) and (2) of the immediately preceding sentence
apply prior to waiving the Mortgagor's requirement to procure insurance with
respect to any Covered Risks. If the Special Servicer fails to give a response
to the Master Servicer as referenced in the second preceding sentence within ten
Business Days of the Master Servicer initially notifying the Special Servicer in
writing of such request, the Master Servicer shall promptly notify the Directing
Certificateholder of such failure of the Special Servicer to respond to such
request. If the Directing Certificateholder and/or the Special Servicer have not
responded to the Master Servicer within ten Business Days of the notice
referenced in the immediately preceding sentence, the Master Servicer shall
determine in accordance with the Servicing Standard whether to require (or not
require) the Mortgagor to maintain such insurance; provided, that during the
period that the Special Servicer and/or the Directing Certificateholder are
evaluating such insurance, none of the Master Servicer, the Special Servicer
and/or the Directing Certificateholder shall be liable for any loss related to
its failure to require a Mortgagor to maintain terrorism insurance and shall not
be in default of its obligations hereunder as a result of such failure. If the
Master Servicer requires the Mortgagor to maintain such insurance and the
Mortgagor fails to maintain such insurance, to the extent such insurance is then
reasonably available, the Master Servicer shall then procure such insurance in
accordance with the Servicing Standard and such failure by the Mortgagor shall
constitute a Servicing Transfer Event. For purposes of computing whether the
$20,000,000 threshold described herein is met for a particular Serviced Loan, if
a Serviced Loan is secured by multiple Mortgaged Properties, then the amount
subject to the $20,000,000 threshold shall be the portion of the Stated
Principal Balance of the related Serviced Loan pro rated based on an individual
Mortgaged Property's appraised value as a percentage of the total appraised
value of all of the related Mortgaged Properties.
(b) If the Master Servicer or the Special Servicer shall obtain and
maintain, or cause to be obtained and maintained, a blanket policy or master
force placed policy insuring against hazard losses on all of the Serviced Loans
or REO Properties (other than with respect to any REO Property related to a
Non-Serviced Loan), as applicable, that it is required to service and administer
hereunder, then, to the extent such policy (i) is obtained from a Qualified
Insurer having a financial strength or claims-paying rating no lower than "A"
from Fitch and "A" from S&P or having such other financial strength or
claims-paying ability rating as would not, as confirmed in writing by the
relevant Rating Agency, result in an Adverse Rating Event and (ii) provides
protection equivalent to the individual policies otherwise required, the Master
Servicer or Special Servicer, as the case may be, shall conclusively be deemed
to have satisfied its obligation to cause hazard insurance to be maintained on
the related Mortgaged Properties or REO Properties, as applicable. Such policy
may contain a deductible clause (not in excess of a customary amount), in which
case the Master Servicer or the Special Servicer, as appropriate, shall, if
there shall not have been maintained on the related Mortgaged Property or REO
Property a hazard insurance policy complying with the requirements of Section
3.07(a), and there shall have been one or more losses that would have been
covered by such an individual policy, promptly deposit into the Certificate
Account from its own funds the amount not otherwise payable under the blanket or
master force placed policy in connection with such loss or losses because of
such deductible clause to the extent that any such deductible exceeds the
deductible limitation that pertained to the related Serviced Loan (or, in the
absence of any such deductible limitation, the deductible limitation for an
individual policy that is consistent with the Servicing Standard). The Master
Servicer or the Special Servicer, as appropriate, shall prepare and present, on
behalf of itself, the Trustee and the Certificateholders and, in the case of a
Whole Loan, the related Companion Loan Holder, claims under any such blanket or
master forced placed policy in a timely fashion in accordance with the terms of
such policy.
(c) Each of the Master Servicer and the Special Servicer shall at
all times during the term of this Agreement (or, in the case of the Special
Servicer, at all times during the term of this Agreement during which Specially
Serviced Loans or REO Properties for which it is responsible exist as part of
the Trust Fund) keep in force with a Qualified Insurer having a financial
strength or claims-paying rating no lower than two rating categories below the
highest rated Certificates outstanding, and in any event no lower than "A" from
Fitch and "A" from S&P, a fidelity bond in such form and amount as would permit
it to be a qualified Xxxxxx Xxx seller-servicer of multifamily mortgage loans
(or in such other form and amount or issued by an insurer with such other
financial strength or claims-paying ability rating as would not result in an
Adverse Rating Event with respect to any Class of Rated Certificates (as
confirmed in writing to the Trustee by the relevant Rating Agency)). Each of the
Master Servicer and the Special Servicer shall be deemed to have complied with
the foregoing provision if an Affiliate thereof has such fidelity bond coverage
and, by the terms of such fidelity bond, the coverage afforded thereunder
extends to the Master Servicer or the Special Servicer, as the case may be. Such
fidelity bond shall provide that it may not be canceled without ten days' prior
written notice to the Trustee.
Each of the Master Servicer and the Special Servicer shall at all
times during the term of this Agreement (or, in the case of the Special
Servicer, at all times during the term of this Agreement during which Specially
Serviced Loans and/or REO Properties for which it is responsible exist as part
of the Trust Fund) also keep in force with a Qualified Insurer having a
financial strength or claims-paying rating no lower than two rating categories
below the highest rated Certificates outstanding, and in any event no lower than
"A" from Fitch and "A" from S&P, a policy or policies of insurance covering loss
occasioned by the errors and omissions of its officers and employees in
connection with its servicing obligations hereunder, which policy or policies
shall be in such form and amount as would permit it to be a qualified Xxxxxx Xxx
seller-servicer of multifamily mortgage loans (or in such other form and amount
or issued by an insurer with such other financial strength or claims-paying
rating as would not result in an Adverse Rating Event with respect to any Class
of Rated Certificates (as confirmed in writing to the Trustee by the relevant
Rating Agency)). Each of the Master Servicer and the Special Servicer shall be
deemed to have complied with the foregoing provisions if an Affiliate thereof
has such insurance and, by the terms of such policy or policies, the coverage
afforded thereunder extends to the Master Servicer or the Special Servicer, as
the case may be. Any such errors and omissions policy shall provide that it may
not be canceled without ten days' prior written notice to the Trustee. So long
as the long-term unsecured debt obligations of the Master Servicer or the
Special Servicer (or its direct or indirect parent company), as applicable, are
rated not lower than "A" from Fitch and "A" from S&P, the Master Servicer or
Special Servicer, as applicable, may self-insure with respect to either or both
of the fidelity bond coverage and the errors and omissions coverage required as
described above, in which case it shall not be required to maintain an insurance
policy with respect to such coverage.
Section 3.08 Enforcement of Alienation Clauses.
(a) As to each Serviced Loan that contains a provision in the nature
of a (i) "due-on-sale" clause (which includes, without limitation, sales or
transfers of the Mortgaged Property (in full or in part) or the sale, transfer,
pledge or hypothecation of direct or indirect interest in the related Borrower
or its owners), which by its terms (1) provides that such Serviced Loan shall
(or may at the mortgagee's option) become due and payable upon the sale or other
transfer of an interest in the related Mortgaged Property or of a controlling
interest in the related Mortgagor; (2) provides that such Serviced Loan may not
be assumed without the consent of the mortgagee or satisfaction of certain
conditions in connection with any such sale or other transfer, for so long as
such Serviced Loan is included in the Trust Fund or (3) provides that such
Serviced Loan may be assumed or transferred without the consent of the mortgagee
provided that certain conditions set forth in the related loan documents are
satisfied, or (ii) as to each Serviced Loan that contains a provision in the
nature of a "due-on-encumbrance" clause (including, without limitation, any
mezzanine financing of the related Borrower or the related Mortgaged Property or
any sale or transfer of preferred equity in such Borrower or its direct or
indirect owners), that by its terms: (1) provides that such Serviced Loan shall
(or may at the mortgagee's option) become due and payable upon the creation of
any additional lien or other encumbrance on the related Mortgaged Property; (2)
requires the consent of the mortgagee or satisfaction of certain conditions to
the creation of any such additional lien or other encumbrance on the related
Mortgaged Property; or (3) provides that such Serviced Loan may be further
encumbered provided that certain conditions set forth in the loan documents have
been satisfied, each of the Master Servicer and the Special Servicer shall, on
behalf of the Trustee as the mortgagee of record, as to those Serviced Loans it
is obligated to service hereunder, exercise (or waive its right to exercise) any
right it may have with respect to such Serviced Loan (x) to accelerate the
payments thereon, (y) to withhold its consent to any such sale or other
transfer, in a manner consistent with the Servicing Standard or (z) determine
whether the conditions set forth in clause (a)(i)(3) of this paragraph have been
satisfied.
Notwithstanding anything to the contrary contained herein, neither
the Master Servicer nor the Special Servicer shall waive any right it has, or
grant any consent it is otherwise entitled to withhold, under any related
"due-on-sale" or "due-on-encumbrance" clause (including, but not limited to,
making any determination that the conditions set forth in clauses (a)(i)(3) and
(a)(ii)(3) of this Section 3.08 have been satisfied), unless both the Master
Servicer and the Special Servicer shall have followed the procedures set forth
for those Serviced Loans in the manner set forth in the immediately below
clauses (i) through (vi):
(i) The Master Servicer shall not waive any right it has, or grant
any consent that it may otherwise withhold under any related "due-on-sale"
or "due-on-encumbrance" clause (including, but not limited to, making any
determination that the conditions set forth in clauses (a)(i)(3) and
(a)(ii)(3) of this Section 3.08 have been satisfied) without first
obtaining the consent of the Special Servicer. The Special Servicer's
consent shall be deemed given if the Master Servicer shall have provided
the Special Servicer written notice of the matter together with all of the
information set forth in the immediately succeeding sentence and all
information reasonably requested by the Special Servicer and the Special
Servicer shall not have responded in writing, via fax or e mail within 15
Business Days of such request (subject to any extensions of applicable
time periods required if the Special Servicer is required by this
Agreement to seek the consent of other third parties). In connection with
the request set forth above, the Master Servicer shall provide to the
Special Servicer written notice of the matter, a written explanation of
the surrounding circumstances, such additional information as the Special
Servicer shall reasonably request and a request for approval by the
Special Servicer.
(ii) The Special Servicer shall not waive any right it has, or grant
any consent that it may otherwise withhold under any related "due-on-sale"
or "due-on-encumbrance" clause without obtaining the consent of the
Directing Certificateholder for (a) any Non-Partitioned Loan and/or Post
CAP Whole Loan that is a Performing Serviced Loan or (b) for any Specially
Serviced Loan that is a Non-Partitioned Loan and/or Post CAP Whole Loan.
Consent by the Directing Certificateholder shall be deemed given if the
Special Servicer shall have provided the Directing Certificateholder
written notice of the matter together with all of the information set
forth in the immediately succeeding sentence and the Directing
Certificateholder shall not have responded in writing, via fax or e mail
within ten Business Days of such request. In connection with the request
set forth above, the Special Servicer shall provide to the Directing
Certificateholder written notice of the matter, a written explanation of
the surrounding circumstances, such additional information as the
Directing Certificateholder shall reasonably request and a request for
approval by the Directing Certificateholder.
(iii) With respect to any A/B Whole Loan for which a related Control
Appraisal Period does not exist, (A) the Master Servicer with respect to
those time periods when such Loan is a Performing Loan shall not waive any
right that it may have, or grant any consent that it may otherwise
withhold under any related "due-on-sale" or "due-on-encumbrance" clause
without obtaining the consent of the Special Servicer, which consent shall
not be given without the Special Servicer first obtaining the consent of
the related Controlling Holder, and (B) the Special Servicer with respect
to those time periods when either such Loan is a Specially Serviced Loan
shall not waive any right that it may have, or grant any consent that it
may otherwise withhold under any related "due-on-sale" or
"due-on-encumbrance" clause without obtaining the consent of the related
Controlling Holder. Consent by a Controlling Holder shall be deemed given
if the Master Servicer or Special Servicer, as applicable, shall have
provided such Controlling Holder written notice of the matter together
with all of the information set forth in the last sentence of Section
3.08(a)(ii) and such Controlling Holder shall not have responded in
writing, via fax or email within ten Business Days of such request.
(iv) Notwithstanding anything to the contrary contained herein, the
Master Servicer shall not permit any such transfer, assumption or further
encumbrance of such Serviced Loan or related Mortgaged Property or
interests in the related Borrower, if the Special Servicer, in accordance
with the Servicing Standard, (a) notifies the Master Servicer of its
determination with respect to any Serviced Loan (which by its terms
permits the transfer, assumption or further encumbrance without mortgagee
consent provided certain conditions are satisfied and the determination as
to whether any such conditions are satisfied would require the mortgagee
to exercise the judgment of a reasonable prudent commercial lender) that
the conditions required under the related loan documents have not been
satisfied or (b) objects in writing to the Master Servicer's determination
that such conditions have been satisfied with respect to any such Serviced
Loan.
(v) [RESERVED].
(vi) Notwithstanding the foregoing, solely with respect to the
consent or waiver of any "due-on-sale" clause as described in Section
3.08(a), if any Mortgage Loan (other than with respect to any Non-Serviced
Mortgage Loan, which is governed by the related Non-Serviced Loan Pooling
and Servicing Agreement):
(1) has a then outstanding principal balance of greater
than $5,000,000 and represents greater than 5.0% of the then
outstanding principal balance of the Mortgage Pool;
(2) has a then outstanding principal balance of greater
than $35,000,000; or
(3) has a then outstanding principal balance of greater
than $5,000,000 and is one of the ten largest Mortgage Loans
in the Mortgage Pool based on the then outstanding principal
balance of the Mortgage Pool,
then neither the Master Servicer nor Special Servicer shall waive any right it
has, or grant any consent it is otherwise entitled to withhold, under any
related "due-on-sale" clause until it has received written confirmation from
each Rating Agency that such action would not result in the qualification (if
applicable), downgrade or withdrawal of the rating then assigned by such Rating
Agency to any Class of Certificates.
(vii) Notwithstanding the foregoing, solely with respect to the
consent or waiver of any "due-on-encumbrance" clause as described in
Section 3.08(a), if any Mortgage Loan (other than with respect to any
Non-Serviced Mortgage Loan, which is governed by the related Non-Serviced
Loan Pooling and Servicing Agreement):
(1) represents greater than 2.0% of the then outstanding
principal balance of the Mortgage Pool;
(2) is at the time one of the ten largest Mortgage Loans
or Cross-Collateralized Set of Mortgage Loans by outstanding
principal balance in the Mortgage Pool or has a then
outstanding principal balance of greater than $20,000,000; or
(3) after taking into consideration any additional
indebtedness secured by the related Mortgaged Property and any
mezzanine debt, the loan-to-value ratio for such Mortgage Loan
would be greater than 85% or the debt service coverage ratio
would be less than 1.20x,
then neither the Master Servicer nor the Special Servicer, as the case may be,
shall waive any right it has, or grant any consent it is otherwise entitled to
withhold, under any related "due-on-encumbrance" clause governing the transfer
of any Mortgaged Property that secures, or controlling interests in any
Mortgagor under, a Cross-Collateralized Set unless the Master Servicer or
Special Servicer, as applicable, shall have obtained written confirmation from
each Rating Agency that such action shall not result in a qualification (if
applicable), downgrade or withdrawal of the rating then assigned by such Rating
Agency to any Class of Certificates or Companion Loan Securities (if
applicable).
(viii) In the event that the Master Servicer or Special Servicer
intends or is required, in accordance with the preceding clauses, by the
loan documents or applicable law, to permit the transfer of any Mortgaged
Property, the Master Servicer or the Special Servicer, as the case may be,
may, if consistent with the Servicing Standard, enter into a substitution
of liability agreement, pursuant to which the original Mortgagor and any
original guarantors are released from liability, and the transferee and
any new guarantors are substituted therefor and become liable under the
Mortgage Note and any related guaranties and, in connection therewith, may
require from the related Mortgagor a reasonable and customary fee for the
additional services performed by it, together with reimbursement for any
related costs and expenses incurred by it. In addition, the Master
Servicer or the Special Servicer, as the case may be, if consistent with
the Servicing Standard, shall require as a condition of its approval that
the related Mortgagor pay all costs associated with such transfer. The
Master Servicer or the Special Servicer, as the case may be, shall
promptly notify the Trustee in writing of any such agreement and forward
the original thereof to the Trustee for inclusion in the related Mortgage
File.
Notwithstanding anything herein to the contrary, the Master Servicer
shall approve and close, without the consent of the Special Servicer, all
initial syndications of tenant-in-common interests, provided such syndications
are specifically permitted by and in accordance with the related loan documents
for any Mortgage Loan (other than a Non-Serviced Loan) or Serviced Whole Loan,
that is not a Specially Serviced Mortgage Loan, including without limitation,
any such Loan set forth on Schedule XIII attached hereto. Upon completion of any
such initial transfer, the Master Servicer shall promptly provide notice by
electronic mail thereof to the Special Servicer and the Directing
Certificateholder, which notice shall also (i) advise the Special Servicer and
Directing Certificateholder as to the total number of transfers with respect to
such Mortgage Loan or Serviced Whole Loan that the Master Servicer has approved
and closed as of such date and the expiration date (if any) by which such
transfer(s) must occur pursuant to the related loan documents, and (ii) advise
the Special Servicer and the Directing Certificateholder of when, with respect
to any such Mortgage Loan or Serviced Whole Loan, such tenant-in-common
syndication is complete. Any requests for modification to or extension of the
final initial syndication date respecting any such tenant-in-common transfers or
increase in the permitted number of tenant-in-common interests under the initial
syndication shall be processed and approved solely by the Special Servicer, who
shall promptly notify the Directing Certificateholder of any such modification
or extension.
(b) In connection with any permitted assumption of any Serviced Loan
or waiver of a "due-on-sale" or "due-on-encumbrance" clause thereunder, the
Master Servicer (in the case of a Performing Serviced Loan) or the Special
Servicer (in the case of a Specially Serviced Loan) shall prepare all documents
necessary and appropriate for such purposes and shall coordinate with the
related Mortgagor for the due execution and delivery of such documents.
(c) If the Master Servicer or the Special Servicer collects an
assumption fee or an assumption application fee in connection with any transfer
or proposed transfer of any interest in a Mortgagor or a Mortgaged Property,
then the Master Servicer or the Special Servicer, as applicable, will apply that
fee to cover the costs and expenses associated with that transfer or proposed
transfer that are not otherwise paid by the related Mortgagor and that would
otherwise be payable or reimbursable out of the Trust Fund, including any Rating
Agency fees and expenses. Any remaining portion of such assumption fee (such
remaining portion, a "Net Assumption Fee") or of such assumption application fee
(such remaining portion, a "Net Assumption Application Fee") will be applied as
additional compensation to the Master Servicer or the Special Servicer in
accordance with Section 3.11.
Section 3.09 Realization Upon Defaulted Serviced Loans.
(a) The Special Servicer shall, subject to Sections 3.09(b),
3.09(c), and 3.09(d), exercise reasonable efforts, consistent with the Servicing
Standard, to foreclose upon or otherwise comparably convert the ownership of
properties and other collateral securing such of the Serviced Loans as come into
and continue in default and as to which no satisfactory arrangements can be made
for collection of delinquent payments, including pursuant to Section 3.20;
provided that neither the Master Servicer nor the Special Servicer shall, with
respect to any ARD Loan after its Anticipated Repayment Date, take any
enforcement action with respect to the payment of Excess Interest (other than
the making of requests for its collection) unless (i) the taking of an
enforcement action with respect to the payment of other amounts due under such
Serviced Loan is, in the good faith and reasonable judgment of the Special
Servicer, and without regard to such Excess Interest, also necessary,
appropriate and consistent with the Servicing Standard, or (ii) all other
amounts due under such Serviced Loan have been paid, the payment of such Excess
Interest has not been forgiven in accordance with Section 3.20 and, in the good
faith and reasonable judgment of the Special Servicer, the Liquidation Proceeds
expected to be recovered in connection with such enforcement action will cover
the anticipated costs of such enforcement action and, if applicable, any
associated Advance Interest. In connection with the foregoing, in the event of a
default under any Serviced Loan or Cross-Collateralized Set that is secured by
real properties located in multiple states, and such states include California
or another state with a statute, rule or regulation comparable to California's
"one action rule", then the Special Servicer shall consult Independent counsel
regarding the order and manner in which the Special Servicer should foreclose
upon or comparably proceed against such properties. The reasonable costs of such
consultation shall be paid by, and reimbursable to, the Master Servicer as a
Servicing Advance. In addition, all other costs and expenses incurred in any
foreclosure sale or similar proceeding shall be paid by, and reimbursable to,
the Special Servicer as a Servicing Advance. Nothing contained in this Section
3.09 shall be construed so as to require the Special Servicer, on behalf of the
Trust, to make a bid on any Mortgaged Property at a foreclosure sale or similar
proceeding that is in excess of the fair market value of such property, as
determined by such Special Servicer taking into account the factors described in
Section 3.18 and the results of any Appraisal obtained pursuant to the following
sentence or otherwise, all such cash bids to be made in a manner consistent with
the Servicing Standard. If and when the Special Servicer deems it necessary in
accordance with the Servicing Standard for purposes of establishing the fair
market value of any Mortgaged Property securing a Defaulted Serviced Loan,
whether for purposes of bidding at foreclosure or otherwise, the Special
Servicer is authorized to have an Appraisal completed with respect to such
property (the cost of which appraisal shall be covered by, and be reimbursable
as, a Servicing Advance).
(b) Notwithstanding any other provision of this Agreement, no
Mortgaged Property shall be acquired by the Special Servicer on behalf of the
Trust (and in the case of a Mortgaged Property securing a Whole Loan, on behalf
of the related Companion Loan Holder) under such circumstances, in such manner
or pursuant to such terms as would (i) cause such Mortgaged Property to fail to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code (unless the portion of such REO Property that is not treated as
"foreclosure property" and that is held by REMIC I at any given time constitutes
not more than a de minimis amount of the assets of such REMIC within the meaning
of Treasury Regulations Sections 1.860D-1(b)(3)(i) and (ii)), or (ii) except as
permitted by Section 3.17(a), subject the Trust (and in the case of a Mortgaged
Property securing any Whole Loan, the related Companion Loan Holder) to the
imposition of any federal income or prohibited transaction taxes under the Code.
Subject to the foregoing, however, a Mortgaged Property may be acquired through
a single member limited liability company. In addition, except as permitted
under Section 3.17, the Special Servicer shall not acquire any personal property
on behalf of the Trust pursuant to this Section 3.09 (with the exception of cash
or cash equivalents pledged as collateral for a Serviced Loan) unless either:
(i) such personal property is incident to real property (within the
meaning of Section 856(e)(1) of the Code) so acquired by the Special
Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of Counsel
(the cost of which shall be covered by, and reimbursable as, a Servicing
Advance) to the effect that the holding of such personal property as part
of the Trust Fund will not cause either of REMIC I or REMIC II to fail to
qualify as a REMIC at any time that any Certificate is outstanding or,
subject to Section 3.17, cause the imposition of a tax on the Trust under
the REMIC Provisions.
(c) Notwithstanding the foregoing provisions of this Section 3.09,
neither the Master Servicer nor the Special Servicer shall, on behalf of the
Trust (and in the case of a Mortgaged Property securing a Whole Loan, on behalf
of the related Companion Loan Holder), obtain title to a Mortgaged Property by
foreclosure, deed-in-lieu of foreclosure or otherwise, or take any other action
with respect to any Mortgaged Property, if, as a result of any such action, the
Trustee, on behalf of the Certificateholders (and in the case of a Mortgaged
Property securing a Whole Loan, on behalf of the related Companion Loan Holder),
could, in the reasonable, good faith judgment of the Special Servicer, exercised
in accordance with the Servicing Standard, be considered to hold title to, to be
a "mortgagee-in-possession" of, or to be an "owner" or "operator" of such
Mortgaged Property within the meaning of CERCLA or any comparable law, unless:
(i) the Special Servicer has previously determined in accordance
with the Servicing Standard, based on a Phase I Environmental Assessment
(and any additional environmental testing that the Special Servicer deems
necessary and prudent) of such Mortgaged Property conducted by an
Independent Person who regularly conducts Phase I Environmental
Assessments and performed during the 12-month period preceding any such
acquisition of title or other action, that the Mortgaged Property is in
compliance with applicable environmental laws and regulations and there
are no circumstances or conditions present at the Mortgaged Property
relating to the use, management or disposal of Hazardous Materials for
which investigation, testing, monitoring, containment, clean-up or
remediation could be required under any applicable environmental laws and
regulations; or
(ii) in the event that the determination described in the
immediately preceding clause (c)(i) cannot be made, the Special Servicer
has previously determined in accordance with the Servicing Standard, on
the same basis as described in the immediately preceding clause (c)(i),
that it would maximize the recovery to the Certificateholders (or if a
Serviced Whole Loan is affected, to the Certificateholders and the related
Companion Loan Holder) (as a collective whole and, in the case of a
Serviced Whole Loan that is an A/B Whole Loan, taking into account the
subordination of the related A/B Companion Loan), on a net present value
basis (the relevant discounting of anticipated collections that will be
distributable to Certificateholders to be performed at the related Net
Mortgage Rate) to acquire title to or possession of the Mortgaged Property
and to take such remedial, corrective and/or other further actions as are
necessary to bring the Mortgaged Property into compliance with applicable
environmental laws and regulations and to appropriately address any of the
circumstances and conditions referred to in the immediately preceding
clause (c)(i).
Any such determination by the Special Servicer contemplated by
clause (i) or clause (ii) of the preceding paragraph shall be evidenced by an
Officer's Certificate to such effect delivered to the Trustee, the Master
Servicer, the Directing Certificateholder, the related Companion Whole Loan
Holder (if a Whole Loan is involved) and the Controlling Holder (if an A/B Whole
Loan is involved), specifying all of the bases for such determination, such
Officer's Certificate to be accompanied by all related environmental reports.
The cost of such Phase I Environmental Assessment and any such additional
environmental testing shall be advanced by the Master Servicer at the direction
of the Special Servicer given in accordance with the Servicing Standard;
provided, however, the Master Servicer shall not be obligated in connection
therewith to advance any funds that, if so advanced, would constitute a
Nonrecoverable Servicing Advance. Amounts so advanced shall be subject to
reimbursement as Servicing Advances in accordance with Section 3.05(a). The cost
of any remedial, corrective or other further action contemplated by clause (ii)
of the preceding paragraph shall be payable out of the Certificate Account or,
if a Whole Loan is involved, out of the related Whole Loan Custodial Account,
pursuant to Section 3.05.
(d) If neither of the conditions set forth in clauses (i) and (ii)
of the first paragraph of Section 3.09(c) has been satisfied with respect to any
Mortgaged Property securing a Defaulted Serviced Loan, the Special Servicer
shall take such action as is in accordance with the Servicing Standard (other
than proceeding against the Mortgaged Property) and, at such time as it deems
appropriate, may, on behalf of the Trust, and, if a Serviced Whole Loan is
involved, the related Companion Loan Holder (as a collective whole and, in the
case of a Serviced Whole Loan that is an A/B Whole Loan, taking into account the
subordination of the related A/B Companion Loan), release all or a portion of
such Mortgaged Property from the lien of the related Mortgage.
(e) The Special Servicer shall report to the Trustee, the Master
Servicer, the related Companion Loan Holder (if a Whole Loan is involved), the
related Controlling Holder (if an A/B Whole Loan is involved) and the Directing
Certificateholder monthly in writing as to any actions taken by the Special
Servicer with respect to any Mortgaged Property as to which neither of the
conditions set forth in clauses (i) and (ii) of the first paragraph of Section
3.09(c) has been satisfied, in each case until the earliest to occur of
satisfaction of either of such conditions, release of the lien of the related
Mortgage on such Mortgaged Property and the related Loan's becoming a Corrected
Serviced Loan.
(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of seeking to obtain a
deficiency judgment if the state in which the Mortgaged Property is located and
the terms of the subject Serviced Loan permit such an action and shall, in
accordance with the Servicing Standard, seek such deficiency judgment if it
deems advisable.
(g) Annually in each January, commencing in January 2008, the Master
Servicer (with information provided by the Special Servicer) shall file with the
IRS, on a timely basis, the information returns with respect to the reports of
foreclosures and abandonments and reports relating to any cancellation of
indebtedness income with respect to any Specially Serviced Loans and REO
Properties (other than REO Properties related to any Non-Serviced Loan) required
by Sections 6050H (as applicable), 6050J and 6050P of the Code.
Contemporaneously, the Master Servicer shall deliver to the Trustee an Officer's
Certificate stating that all such information returns relating to Specially
Serviced Loans and REO Properties that were required to be filed during the
prior 12 months have been properly completed and timely provided to the IRS. The
Master Servicer shall prepare and file the information returns with respect to
the receipt of any mortgage interest received in a trade or business from
individuals with respect to any Serviced Loan as required by Section 6050H of
the Code. All information returns shall be in form and substance sufficient to
meet the reporting requirements imposed by the relevant sections of the Code.
(h) As soon as the Special Servicer makes a Final Recovery
Determination with respect to any Serviced Loan or REO Property (other than any
REO Property related to any Non-Serviced Loan), it shall promptly notify the
Trustee, the Master Servicer, the Directing Certificateholder, the related
Companion Loan Holder (if a Whole Loan is involved) and the Controlling Holder
(if an A/B Whole Loan is involved). The Special Servicer shall maintain accurate
records, prepared by a Servicing Officer, of each such Final Recovery
Determination (if any) and the basis thereof. Each such Final Recovery
Determination (if any) shall be evidenced by an Officer's Certificate delivered
to the Trustee and the Master Servicer no later than the third Business Day
following such Final Recovery Determination.
Section 3.10 Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Serviced Loan, or the receipt by
the Master Servicer of a notification that payment in full shall be escrowed in
a manner customary for such purposes, the Master Servicer shall immediately
notify the Trustee and the related Companion Loan Holder (if a Whole Loan is
involved), and request delivery of the related Mortgage File by delivering
thereto a Request for Release in the form of Exhibit D that shall be accompanied
by the form of any release or discharge to be executed by the Trustee. Any such
Request for Release shall include a statement to the effect that all amounts
received or to be received in connection with such payment that are required to
be deposited into the Certificate Account pursuant to Section 3.04(a) have been
or will be so deposited. Upon receipt of such notice and request conforming in
all material respects to the provisions hereof, the Trustee shall promptly
release, or cause any related Custodian to release, the related Mortgage File to
the Master Servicer or Special Servicer, as applicable. If the Mortgage has been
recorded in the name of MERS or its designee, the Master Servicer shall take all
necessary action to reflect the release of the Mortgage on the records of MERS.
No expenses incurred in connection with any instrument of satisfaction or deed
of reconveyance shall be chargeable to the Certificate Account or if a Whole
Loan is involved, the related Whole Loan Custodial Account.
(b) If from time to time, and as appropriate for servicing or
foreclosure of any Serviced Loan, the Master Servicer or the Special Servicer
shall otherwise require any Mortgage File (or any portion thereof), then, upon
request of the Master Servicer or the Special Servicer and receipt therefrom of
a Request for Release in the form of Exhibit D attached hereto signed by a
Servicing Officer thereof, the Trustee shall release, or cause any related
Custodian to release, such Mortgage File (or portion thereof) to the Master
Servicer or the Special Servicer, as the case may be. Upon return of such
Mortgage File (or portion thereof) to the Trustee or the related Custodian, or
the delivery to the Trustee of a certificate of a Servicing Officer of the
Special Servicer stating that such Serviced Loan was liquidated and that all
amounts received or to be received in connection with such liquidation that are
required to be deposited into the Certificate Account pursuant to Section
3.04(a), or, if a Whole Loan is involved, into the related Whole Loan Custodial
Account pursuant to Section 3.04(e), have been or will be so deposited, or that
such Serviced Loan has become an REO Property, the Request for Release shall be
released by the Trustee to the Master Servicer or the Special Servicer, as
applicable.
(c) Within five Business Days of the Special Servicer's request
therefor (or, if the Special Servicer notifies the Trustee of an exigency,
within such shorter period as is reasonable under the circumstances), the
Trustee shall execute and deliver to the Special Servicer, in the form supplied
to the Trustee, as applicable, by the Special Servicer, any court pleadings,
requests for trustee's sale or other documents reasonably necessary to the
foreclosure or trustee's sale in respect of a Mortgaged Property or to any legal
action brought to obtain judgment against any Mortgagor on the Mortgage Note or
Mortgage or to obtain a deficiency judgment, or to enforce any other remedies or
rights provided by the Mortgage Note or Mortgage or otherwise available at law
or in equity or to defend any legal action or counterclaim filed against the
Trust, or if a Whole Loan is involved, against the related Companion Loan
Holder, the Master Servicer or the Special Servicer; provided that the Trustee
may alternatively execute and deliver to the Special Servicer, in the form
supplied to the Trustee by the Special Servicer, a limited power of attorney,
subject to the provisions of Section 3.01(c), issued in favor of the Special
Servicer and empowering the Special Servicer to execute and deliver any or all
of such pleadings or documents on behalf of the Trustee (however, the Trustee
shall not be liable for any misuse of such power of attorney by such Special
Servicer). Together with such pleadings or documents (or such power of attorney
empowering the Special Servicer to execute the same on behalf of the Trustee),
the Special Servicer shall deliver to the Trustee an Officer's Certificate
requesting that such pleadings or documents (or such power of attorney
empowering the Special Servicer to execute the same on behalf of the Trustee) be
executed by the Trustee and certifying as to the reason such pleadings or
documents are required and that the execution and delivery thereof by the
Trustee (or by the Special Servicer on behalf of the Trustee) will not
invalidate or otherwise affect the lien of the Mortgage, except for the
termination of such a lien upon completion of the foreclosure or trustee's sale.
If a Whole Loan is involved, such documents and pleadings shall also be
delivered by the Special Servicer to the related Companion Loan Holder.
(d) Each of the Master Servicer and the Special Servicer, as
applicable, is authorized for the benefit of the Certificateholders and, if a
Whole Loan is involved, the related Companion Loan Holder, to direct, manage,
prosecute and/or defend any and all claims and litigation relating to (a) the
enforcement of the obligations of the Borrower or guarantor under any loan
documents and (b) any action brought by the Borrower against the Trust Fund.
Such enforcement shall be carried out in accordance with the terms of this
Agreement, including, without limitation, the Servicing Standard; it being
expressly understood that (i) the Master Servicer shall not be liable for such
enforcement by the Special Servicer and (ii) the Special Servicer shall not be
liable for such enforcement by the Master Servicer. If from time to time,
pursuant to the terms of the Beacon Seattle & DC Portfolio Intercreditor
Agreement and the Beacon Seattle & DC Portfolio Pooling Agreement, and as
appropriate for enforcing the terms of the Beacon Seattle & DC Portfolio
Mortgage Loan, the Beacon Seattle & DC Portfolio Master Servicer requests
delivery to it of the original Mortgage Note for the Beacon Seattle & DC
Portfolio Mortgage Loan, then the Trustee shall release or cause the release of
such original Mortgage Note to the Beacon Seattle & DC Portfolio Master Servicer
or its designee. If from time to time, pursuant to the terms of the 000
Xxxxxxxxx Xxxxxx Intercreditor Agreement and the 000 Xxxxxxxxx Xxxxxx Pooling
Agreement, and as appropriate for enforcing the terms of the 000 Xxxxxxxxx
Xxxxxx Pari Passu Mortgage Loan, the 000 Xxxxxxxxx Xxxxxx Master Servicer
requests delivery to it of the original Mortgage Note for the 000 Xxxxxxxxx
Xxxxxx Pari Passu Mortgage Loan, then the Trustee shall release or cause the
release of such original Mortgage Note to the 000 Xxxxxxxxx Xxxxxx Master
Servicer or its designee.
Section 3.11 Servicing Compensation; Interest on Servicing Advances;
Payment of Certain Expenses; Obligations of the Trustee Regarding Back-up
Servicing Advances.
(a) As compensation for its activities hereunder, the Master
Servicer shall be entitled to receive the Master Servicing Fee with respect to
each Loan (including each Specially Serviced Loan) and each related REO Loan. As
to each such Loan and REO Loan, for each calendar month (commencing with July
2007) or any applicable portion thereof, the Master Servicing Fee shall accrue
at the related Master Servicing Fee Rate on the same principal amount, and
without giving effect to any Excess Interest that may accrue on any ARD Loan
after its Anticipated Repayment Date, as interest accrues from time to time
during such calendar month (or portion thereof) on such Loan or is deemed to
accrue from time to time during such calendar month (or portion thereof) on such
REO Loan, as the case may be, and shall be calculated on the same Interest
Accrual Basis as is applicable for such Loan or REO Loan, as the case may be.
The Master Servicing Fee with respect to any Loan or REO Loan shall cease to
accrue if a Liquidation Event (or with respect to a Non-Serviced Loan, a similar
event occurs under the related Non-Serviced Loan Pooling and Servicing
Agreement) occurs in respect thereof. Master Servicing Fees earned with respect
to any such Loan or REO Loan shall be payable monthly from payments of interest
on such Loan or REO Revenues allocable as interest on such REO Loan, as the case
may be. The Master Servicer shall be entitled to recover unpaid Master Servicing
Fees in respect of any Loan or REO Loan out of the portion of any related
Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds allocable as
interest on such Loan or REO Loan, as the case may be. The right to receive the
Master Servicing Fee may not be transferred in whole or in part except in
connection with the transfer of all of the Master Servicer's responsibilities
and obligations under this Agreement and except as otherwise expressly provided
in the following paragraph.
(b) The Master Servicer shall be entitled to receive the following
items as additional servicing compensation, which shall be paid prior to
remittance of such amounts, if any, which are required to be paid in the case of
a Whole Loan to any Companion Loan Holder under any Intercreditor Agreement (the
following items, collectively, "Additional Master Servicing Compensation"):
(i) any and all Net Default Charges, Net Assumption Application
Fees, Net Modification Application Fees and earnout fees collected with
respect to a Performing Serviced Loan;
(ii) 50% of any and all Net Assumption Fees actually paid by a
Mortgagor with respect to a Performing Serviced Loan;
(iii) 50% of any and all Net Modification Fees, extension fees,
consent fees and waiver fees actually paid by a Mortgagor with respect to
a Performing Serviced Loan for which Special Servicer approval is
required;
(iv) any and all charges for beneficiary statements or demands,
amounts collected for checks returned for insufficient funds and other
loan processing fees actually paid by a Mortgagor with respect to a
Performing Serviced Loan and, in the case of checks returned for
insufficient funds, with respect to a Specially Serviced Loan;
(v) any and all Prepayment Interest Excess collected on the Mortgage
Loans (other than any Non-Serviced Mortgage Loan);
(vi) interest or other income earned on deposits in the Investment
Accounts maintained by the Master Servicer, in accordance with Section
3.06(b) (but only to the extent of the Net Investment Earnings, if any,
with respect to any such Investment Account for each Collection Period
and, further, in the case of a Servicing Account or Reserve Account, only
to the extent such interest or other income is not required to be paid to
any Mortgagor under applicable law or under the related Mortgage); and
(vii) 50% of any and all substitution fees (net of any costs
incurred in connection with any substitution) collected on a Performing
Serviced Loan.
Notwithstanding the foregoing with respect to any 50% sharing of
fees referenced in this Section 3.11(b), the Master Servicer shall be entitled
to all such fees if with respect to the activity related to any such fee the
Master Servicer is not required to seek the consent and/or approval of the
Special Servicer pursuant to this Agreement.
To the extent that any of the amounts described in the preceding
paragraph are collected by the Special Servicer, the Special Servicer shall
promptly pay such amounts to the Master Servicer.
(c) As compensation for its activities hereunder, the Special
Servicer shall be entitled to receive monthly the Special Servicing Fee with
respect to each Specially Serviced Loan and each REO Loan for which it is
responsible. As to each Specially Serviced Loan and REO Loan, for any particular
calendar month or applicable portion thereof, the Special Servicing Fee shall
accrue at the Special Servicing Fee Rate on the same principal amount as
interest accrues from time to time during such calendar month (or portion
thereof) on such Specially Serviced Loan or is deemed to accrue from time to
time during such calendar month (or portion thereof) on such REO Loan, as the
case may be, and shall be calculated on the same Interest Accrual Basis as is
applicable for such Specially Serviced Loan or REO Loan, as the case may be. The
Special Servicing Fee with respect to any Specially Serviced Loan or REO Loan
shall cease to accrue as of the date a Liquidation Event occurs in respect
thereof or, in the case of a Specially Serviced Loan, as of the date it becomes
a Corrected Serviced Loan. Earned but unpaid Special Servicing Fees with respect
to Specially Serviced Loans and REO Loans shall be payable monthly out of
general collections on the Loans and any REO Properties on deposit in the
Certificate Account pursuant to Section 3.05(a); provided, however, if a Whole
Loan is involved, first out of funds on deposit in the related Whole Loan
Custodial Account pursuant to Section 3.05(f).
As further compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Workout Fee with respect to each
Corrected Serviced Loan. As to each Corrected Serviced Loan, the Workout Fee
shall be payable out of, and shall be calculated by application of the Workout
Fee Rate to, each payment of interest (other than Default Interest and Excess
Interest) and principal received from the related Mortgagor on such Serviced
Loan for so long as it remains a Corrected Serviced Loan. The Workout Fee with
respect to any such Corrected Serviced Loan will cease to be payable if a new
Servicing Transfer Event occurs with respect thereto or if the related Mortgaged
Property becomes an REO Property; provided that a new Workout Fee would become
payable if and when the subject Serviced Loan again became a Corrected Serviced
Loan. If the Special Servicer is terminated, including pursuant to Section 3.23,
or resigns in accordance with Section 6.04, it shall retain the right to receive
any and all Workout Fees payable in respect of (i) any Serviced Loans serviced
by it that became Corrected Serviced Loans during the period that it acted as
Special Servicer and that were still Corrected Serviced Loans at the time of
such termination or resignation and (ii) any Specially Serviced Loans for which
such Special Servicer has resolved the circumstances and/or conditions causing
any such Serviced Loan to be a Specially Serviced Loan, but that had not as of
the time the Special Servicer was terminated become a Corrected Serviced Loan
solely because the related Mortgagor had not made three consecutive timely
Monthly Payments and that subsequently becomes a Corrected Serviced Loan as a
result of the related Mortgagor making such three consecutive timely monthly
payments (and the successor to the Special Servicer shall not be entitled to any
portion of such Workout Fees), in each case until the Workout Fee for any such
loan ceases to be payable in accordance with the preceding sentence; provided
that, in the case of any Specially Serviced Loan described in clause (ii) of
this sentence, the terminated Special Servicer shall immediately deliver the
related Servicing File to the Master Servicer, and the Master Servicer shall
(without further compensation) monitor that all conditions precedent to such
Serviced Loan's becoming a Corrected Serviced Loan are satisfied and, further,
shall immediately transfer such Servicing File to the new Special Servicer if
and when it becomes apparent to the Master Servicer that such conditions
precedent will not be satisfied.
As further compensation for its activities hereunder, the Special
Servicer shall also be entitled to receive a Liquidation Fee with respect to
each Specially Serviced Loan or REO Loan as to which it receives any full,
partial or discounted payoff from the related Mortgagor or any Insurance
Proceeds, Condemnation Proceeds or Liquidation Proceeds. Notwithstanding the
foregoing and for the avoidance of doubt, no Liquidation Fee shall be payable in
connection with (a) the purchase of a Defaulted Serviced Loan by the Majority
Certificateholder of the Controlling Class pursuant to any applicable purchase
right set forth in Section 3.18(c) or with respect to a purchase of a related
Defaulted Serviced Loan at its fair value as determined in Section 3.18, unless
such purchase is by an assignee of the Majority Certificateholder of the
Controlling Class or the Special Servicer, such assignee is not an affiliate of
the Majority Certificateholder of the Controlling Class or the Special Servicer,
such assignment is for no material consideration; and provided and such purchase
occurs or purchase right is exercised more than 90 days from the date that the
Special Servicer has initially determined the fair value of the related Mortgage
Loan; (b) the purchase of any Mortgage Loan by the related A/B Whole Loan
Purchase Option Holder (or its designee) or the holder of a subordinate note or
a Mezzanine Loan (or its designee) pursuant to a purchase option contained in
the related intercreditor agreement unless such purchase occurs or purchase
right is exercised more than 90 days from the date that the Special Servicer has
initially determined the fair value of the Mortgage Loan, (c) the purchase
option of the Majority Certificateholder of the Controlling Class, the Master
Servicer or the Special Servicer pursuant to Section 9.01(d) the repurchase by
the related Mortgage Loan Seller of a Mortgage Loan so required to be
repurchased by it pursuant to Section 4 of the related Mortgage Loan Purchase
and Sale Agreement and Section 2.03 within the time frame set forth in the
Initial Resolution Period and/or the Resolution Extension Period (if
applicable); provided that such time frame shall never be less than 90 days from
the date that the related Mortgage Loan Seller was first notified of its
obligation to repurchase pursuant to Section 4 of the related Mortgage Loan
Purchase and Sale Agreement and Section 2.03, provided such purchase occurs
within 90 days after the date that the related Mortgage Loan Seller was first
notified of its obligation to repurchase such Loan; (e) in connection with a
Loss of Value Payment by the related Mortgage Loan Seller; and (f) with respect
to any Non-Serviced Companion Loan, a purchase or repurchase of such
Non-Serviced Companion Loan under an Non-Serviced Pooling and Servicing
Agreement. As to each such Specially Serviced Loan or REO Loan, the Liquidation
Fee shall be payable out of, and shall be calculated by application of the
Liquidation Fee Rate to, any such full, partial or discounted payoff,
Condemnation Proceeds and/or Liquidation Proceeds received or collected in
respect thereof (other than any portion of such payment or proceeds that
represents Default Charges, Excess Interest or a Prepayment Premium). The
Liquidation Fee with respect to any such Specially Serviced Loan will not be
payable if such Serviced Loan becomes a Corrected Serviced Loan.
The Special Servicer's right to receive any Special Servicing Fee,
Workout Fee and/or Liquidation Fee to which it is entitled may not be
transferred in whole or in part except in connection with the transfer of all of
the Special Servicer's responsibilities and obligations under this Agreement and
except as otherwise expressly provided herein.
(d) The Special Servicer shall be entitled to receive the following
items as additional special servicing compensation, which shall be paid prior to
remittance of such amounts, if any, which are required to be paid to the related
Companion Loan Holder in the case of a Whole Loan under the related
Intercreditor Agreement (the following items, collectively, the "Additional
Special Servicing Compensation"):
(i) any and all Net Default Charges collected with respect to a
Specially Serviced Loan or an REO Loan;
(ii) any and all Net Assumption Fees, Net Assumption Application
Fees, Net Modification Fees, Net Modification Application Fees, extension
fees, consent fees, waiver fees, earnout fees, late payment charges and
charges for beneficiary statements or demands that are actually received
on or with respect to a Specially Serviced Loan or an REO Loan;
(iii) 50% of any and all Net Assumption Fees, modification fees,
extension fees, consent fees and waiver fees that are actually received on
or with respect to a Performing Serviced Loan;
(iv) interest or other income earned on deposits in the Special
Servicer's applicable REO Account in accordance with Section 3.06(b) (but
only to the extent of the Net Investment Earnings, if any, with respect to
such REO Account for each Collection Period); and
(v) 50% of any and all substitution fees (net of any costs incurred
in connection with any substitution) collected on a Performing Serviced
Loan.
Notwithstanding the foregoing with respect to the fees referenced in
the immediately preceding clauses (iii) and (v), the Special Servicer shall not
be entitled to such fees unless the Master Servicer was required to seek the
approval or consent of the Special Servicer pursuant to this Agreement with
respect to any consent, extension, modification or waiver related to any such
fee.
To the extent that any of the amounts described in the preceding
paragraph are collected by the Master Servicer with respect to a Specially
Serviced Loan, the Master Servicer shall promptly pay such amounts to the
Special Servicer and shall not be required to deposit such amounts in the
Certificate Account or if a Whole Loan is involved, in the related Whole Loan
Custodial Account.
(e) The Master Servicer and the Special Servicer shall each be
required (subject to Section 3.11(h)) to pay out of its own funds all expenses
incurred by it in connection with its servicing activities hereunder (including
payment of any amounts due and owing to any Sub-Servicers retained by it
(including any termination fees) and the premiums for any blanket policy or the
standby fee or similar premium, if any, for any master force placed policy
obtained by it insuring against hazard losses pursuant to Section 3.07(b)), if
and to the extent such expenses are not payable directly out of the Certificate
Account, the related Whole Loan Custodial Account, the Reserve Accounts or an
REO Account, and neither the Master Servicer nor the Special Servicer shall be
entitled to reimbursement for any such expense incurred by it except as
expressly provided in this Agreement. If the Master Servicer is required to make
any Servicing Advance hereunder at the direction of the Special Servicer in
accordance with Section 3.03(c), Section 3.19 or otherwise, the Special Servicer
shall promptly provide the Master Servicer with such documentation regarding the
subject Servicing Advance as the Master Servicer may reasonably request.
(f) If the Master Servicer is required under this Agreement to make
a Servicing Advance, but does not do so within ten days after such Advance is
required to be made, the Trustee shall, if it has actual knowledge of such
failure on the part of the Master Servicer, give notice of such failure to the
Master Servicer. If such Advance is not made by the Master Servicer within three
Business Days after such notice, then (subject to Section 3.11(h)) the Trustee
shall make such Advance. Any failure by the Master Servicer to make a Servicing
Advance it is required to make hereunder shall constitute an Event of Default by
the Master Servicer, subject to and as provided in Section 7.01(a).
(g) The Master Servicer, the Special Servicer and the Trustee shall
each be entitled to receive interest at the Reimbursement Rate in effect from
time to time, accrued on the amount of each Advance made thereby (with its own
funds), for so long as such Advance is outstanding. Such interest with respect
to any Advances shall be payable: (i) first, in accordance with Sections 3.05
and 3.27, out of any Default Charges subsequently collected on or in respect of
the Mortgage Pool or the Companion Loan related to a Whole Loan, if applicable;
and (ii) then, after such Advance is reimbursed, but only if and to the extent
that such Default Charges are insufficient to cover such Advance Interest, out
of general collections on the Mortgage Loans and REO Properties on deposit in
the Certificate Account or if a Whole Loan or related REO Property is involved,
on deposit in the related Whole Loan Custodial Account. The Master Servicer
shall reimburse itself, the Special Servicer or the Trustee, as appropriate, for
any Advance made by any such Person as soon as practicable after funds available
for such purpose are deposited into the Certificate Account or if a Whole Loan
is involved, are deposited into the related Whole Loan Custodial Account.
Notwithstanding anything herein to the contrary, no interest shall be payable
with respect to any P&I Advance of a payment due on a Serviced Loan during the
applicable grace period and interest shall cease to accrue on any
Workout-Delayed Reimbursement Amount to the extent such amount has been
reimbursed from principal collections in accordance with Section 3.05.
(h) Notwithstanding anything to the contrary set forth herein, none
of the Master Servicer, the Special Servicer or the Trustee shall be required to
make any Servicing Advance that it determines in its reasonable, good faith
judgment would constitute a Nonrecoverable Servicing Advance; provided, however,
the Special Servicer may, at its option, in consultation with the Directing
Certificateholder, make a determination in accordance with the Servicing
Standard, that any Servicing Advance previously made or proposed to be made is a
Nonrecoverable Servicing Advance and shall deliver to the Master Servicer and
the Trustee notice of such determination. Any such determination shall be
conclusive and binding on the Master Servicer and the Trustee. The determination
by any Person with an obligation hereunder to make Servicing Advances (or a
determination by the Special Servicer with respect to such Person) that it has
made a Nonrecoverable Servicing Advance or that any proposed Servicing Advance,
if made, would constitute a Nonrecoverable Servicing Advance, shall be made by
such Person in its reasonable, good faith judgment and shall be evidenced by an
Officer's Certificate delivered promptly to the Depositor and the Trustee
(unless it is the Person making such determination), and the Trustee shall
provide a copy thereof to the Directing Certificateholder, the related Companion
Loan Holder (if a Whole Loan is involved and the Trustee has knowledge of such
Companion Loan Holder), setting forth the basis for such determination,
accompanied by a copy of an Appraisal of the related Mortgaged Property or REO
Property performed within the 12 months preceding such determination, and
further accompanied by any other information, including engineers' reports,
environmental surveys or similar reports, that such Person may have obtained and
that support such determination. Notwithstanding the foregoing and the Trustee
(i) shall conclusively rely on and be bound by any determination of
nonrecoverability that may have been made by the Special Servicer and (ii) shall
be entitled to conclusively rely on any determination of nonrecoverability that
may have been made by the Master Servicer with respect to a particular Servicing
Advance, and the Master Servicer and the Special Servicer shall each be entitled
to conclusively rely on any determination of nonrecoverability that may have
been made by the other such party with respect to a particular Servicing
Advance. A copy of any such Officer's Certificate (and accompanying information)
of the Master Servicer shall also be delivered promptly to the Special Servicer,
a copy of any such Officer's Certificate (and accompanying information) of the
Special Servicer shall also be promptly delivered to the Master Servicer, and a
copy of any such Officer's Certificates (and accompanying information) of the
Trustee shall also be promptly delivered to the Master Servicer and the Special
Servicer. The Master Servicer shall consider Unliquidated Advances in respect of
prior Servicing Advances for purposes of nonrecoverability determinations as if
such Unliquidated Advances were unreimbursed Servicing Advances.
(i) Notwithstanding anything to the contrary set forth herein, the
Master Servicer may (and, at the direction of the Special Servicer if a
Specially Serviced Loan or an REO Property is involved, shall) pay directly out
of the Certificate Account or, if a Whole Loan is involved, the related Whole
Loan Custodial Account, in accordance with Section 3.05, any servicing expense
that, if paid by the Master Servicer or the Special Servicer, would constitute a
Nonrecoverable Servicing Advance; provided that the Master Servicer (or the
Special Servicer, if a Specially Serviced Loan or an REO Property is involved)
has determined in accordance with the Servicing Standard that making such
payment is in the best interests of the Certificateholders, or if a Serviced
Whole Loan is affected, the interests of the Certificateholders and the related
Companion Loan Holder (as a collective whole and, in the case of a Serviced
Whole Loan that is an A/B Whole Loan, taking into account the subordination of
the related A/B Companion Loan), as evidenced by an Officer's Certificate
delivered promptly to the Depositor and the Trustee, which shall provide a copy
thereof to the Directing Certificateholder and the related Companion Loan
Holder, as applicable (if a Whole Loan is involved and the Trustee has knowledge
of such Companion Loan Holder), setting forth the basis for such determination
and accompanied by any information that such Person may have obtained that
supports such determination. A copy of any such Officer's Certificate (and
accompanying information) of the Master Servicer shall also be delivered
promptly to the Special Servicer, and a copy of any such Officer's Certificate
(and accompanying information) of the Special Servicer shall also be promptly
delivered to the Master Servicer.
Section 3.12 Inspections; Collection of Financial Statements.
(a) The Special Servicer shall perform or cause to be performed a
physical inspection of a Mortgaged Property as soon as practicable (but in any
event not later than 60 days) after the related Serviced Loan becomes a
Specially Serviced Loan (and, in cases where the related Serviced Loan has
become a Specially Serviced Loan, the Special Servicer shall continue to perform
or cause to be performed a physical inspection of the subject Mortgaged Property
at least once per calendar year thereafter for so long as the related Serviced
Loan remains a Specially Serviced Loan or if such Mortgaged Property becomes an
REO Property); provided that the Special Servicer shall be entitled to
reimbursement of the reasonable and direct out-of-pocket expenses incurred by it
in connection with each such inspection as Servicing Advances. Beginning in
2008, the Master Servicer shall at its expense perform or cause to be performed
an inspection of each Mortgaged Property (other than the Mortgaged Property
related to any Non-Serviced Loan) at least once per calendar year (or, in the
case of each Loan with an unpaid principal balance of under $2,000,000, once
every two years), if the Special Servicer has not already done so during that
period pursuant to the preceding sentence. In addition, with respect to each
Specially Serviced Loan, the Special Servicer shall inspect the related
Mortgaged Property as soon as practicable after the Debt Service Coverage Ratio
for such Mortgage Loan falls below 1.0x. The costs of each such inspection
incurred by the Special Servicer shall be reimbursable first from Default
Charges and then, to the extent such Default Charges are insufficient, out of
general collections. To the extent such costs are to be reimbursed from general
collections, such costs shall constitute an Additional Trust Fund Expense. The
Master Servicer and the Special Servicer shall each prepare a written report of
each such inspection performed by it or on its behalf that sets forth in detail
the condition of the Mortgaged Property and that specifies the occurrence or
existence of: (i) any sale, transfer or abandonment of the Mortgaged Property of
which the Master Servicer or the Special Servicer, as the case may be, is aware,
(ii) any change in the condition or occupancy of the Mortgaged Property that the
Master Servicer or the Special Servicer, as the case may be, in accordance with
the Servicing Standard, is aware of and considers material, or (iii) any waste
committed on the Mortgaged Property that the Master Servicer or the Special
Servicer, as the case may be, in accordance with the Servicing Standard, is
aware of and considers material. Upon request of the Trustee, the Master
Servicer and the Special Servicer shall each deliver to the Trustee a copy (or
image in suitable electronic media) of each such written report prepared by it,
in each case within 30 days following the request (or, if later, within 30 days
following the later of completion of the related inspection if the inspection is
performed by the Master Servicer or the Special Servicer, as the case may be, or
receipt of the related inspection report if the inspection is performed by a
third party). Upon request, the Trustee shall request from the Master Servicer
or the Special Servicer, as the case may be, and, to the extent such items have
been delivered to the Trustee by the Master Servicer or the Special Servicer, as
the case may be, deliver, upon request, to each of the Depositor, the related
Mortgage Loan Seller, the Directing Certificateholder, the related Companion
Loan Holder or any Controlling Holder, as applicable (if a Whole Loan is
involved and the Trustee has knowledge of such Companion Loan Holder or such
Controlling Holder, as applicable), any Certificateholder or, if the Trustee has
in accordance with Section 5.06(b) confirmed the Ownership Interest in
Certificates held thereby, any Certificate Owner, a copy (or image in suitable
electronic media) of each such written report prepared by the Master Servicer or
the Special Servicer.
(b) Commencing with respect to the calendar quarter ended September
2007, the Special Servicer, in the case of any Specially Serviced Loan, and the
Master Servicer, in the case of each Performing Serviced Loan, shall make
reasonable efforts to collect promptly (and, in any event, shall attempt to
collect within 45 days following the end of the subject quarter or 120 days
following the end of the subject year) from each related Mortgagor quarterly and
annual operating statements, budgets and rent rolls of the related Mortgaged
Property, and quarterly and annual financial statements of such Mortgagor, to
the extent required pursuant to the terms of the related Mortgage. In addition,
the Special Servicer shall cause quarterly and annual operating statements,
budgets and rent rolls to be regularly prepared in respect of each REO Property
(other than any REO Property related to any Non-Serviced Mortgage Loan) and
shall collect all such items promptly following their preparation. The Special
Servicer shall deliver copies (or images in suitable electronic media) of all of
the foregoing items so collected or obtained by it to the Master Servicer within
30 days of its receipt thereof.
Within 60 days after receipt by the Master Servicer from the related
Mortgagors or otherwise, as to any Performing Serviced Loan, and within 45 days
after receipt by the Special Servicer or otherwise, as to any Specially Serviced
Loan or REO Property (other than REO Property related to any Non-Serviced Loan),
of any annual operating statements or rent rolls with respect to any Mortgaged
Property (other than the Mortgaged Property related to any Non-Serviced Loan) or
REO Property (other than any REO Property related to any Non-Serviced Loan), the
Master Servicer (or the Special Servicer, with respect to any Specially Serviced
Loan or REO Property) shall, based upon such operating statements or rent rolls,
prepare (or, if previously prepared, update) the related CMSA Operating
Statement Analysis Report commencing March 31, 2008. The Master Servicer also
shall deliver to the Directing Certificateholder (in hard copy or electronic
format, as requested) copies of all such rent rolls and operating statements.
The Special Servicer shall remit a copy of each CMSA Operating Statement
Analysis Report prepared or updated by it (within ten days following the initial
preparation and each update thereof), together with, if so requested, the
underlying operating statements and rent rolls, to the Master Servicer in a
format reasonably acceptable to the Master Servicer and the Trustee. All CMSA
Operating Statement Analysis Reports relating to Performing Serviced Loans shall
be maintained by the Master Servicer, and all CMSA Operating Statement Analysis
Reports relating to any Specially Serviced Loan and REO Property shall be
maintained by the Special Servicer. The Trustee shall, upon request, request
from the Master Servicer (if necessary) and, to the extent such items have been
delivered to the Trustee by the Master Servicer, deliver to the Directing
Certificateholder, the related Companion Loan Holder (if a Whole Loan is
involved and the Trustee has knowledge of such Companion Loan Holder), any
Certificateholder or, if the Trustee has in accordance with Section 5.06
confirmed the Ownership Interest in the Certificates held thereby, any
Certificate Owner, a copy of such CMSA Operating Statement Analysis (or update
thereof) and, if requested, the related operating statement or rent rolls.
Within 60 days (or, in the case of items received from the Special
Servicer with respect to Specially Serviced Loans and REO Properties, 30 days)
after receipt by the Master Servicer of any quarterly or annual operating
statements with respect to any Mortgaged Property (other than with respect to
the Mortgaged Property related to any Non-Serviced Loan) or REO Property (other
than any REO Property related to any Non-Serviced Loan), the Master Servicer (or
the Special Servicer, with respect to any Specially Serviced Loan or REO
Property) shall prepare or update and forward to the Trustee (upon request), the
Master Servicer (with respect to CMSA NOI Adjustment Worksheets prepared by the
Special Servicer), the Special Servicer (with respect to CMSA NOI Adjustment
Worksheets prepared by the Master Servicer), the Directing Certificateholder (if
the Directing Certificateholder and the Special Servicer are not the same
entity), the related Companion Loan Holder, upon its request (if the related
Whole Loan is involved), a CMSA NOI Adjustment Worksheet for such Mortgaged
Property or REO Property, together with, if so requested, the related operating
statements (in an electronic format reasonably acceptable to the Trustee and the
Special Servicer) commencing March 31, 2008.
If, with respect to any Serviced Loan (other than a Specially
Serviced Loan), the Special Servicer has any questions for the related Mortgagor
based upon the information received by the Special Servicer pursuant to Section
3.12(a) or 3.12(b), the Master Servicer shall, in this regard and without
otherwise changing or modifying its duties hereunder, reasonably cooperate with
the Special Servicer in assisting the Special Servicer to contact and solicit
information from such Mortgagor.
(c) Not later than 2:00 p.m. (New York City time) on the first
Business Day following each Determination Date, the Special Servicer shall
prepare and deliver or cause to be delivered to the Master Servicer, the
Directing Certificateholder and the related Companion Loan Holder (if a Whole
Loan is involved), the following reports (or data files relating to reports of
the Master Servicer) with respect to the Specially Serviced Loans and any REO
Properties for which it is responsible, providing the required information as of
such Determination Date: (i) a CMSA Property File; (ii) a CMSA Special Servicer
Loan File (which, in each case, if applicable, will identify each Serviced Loan
by loan number and property name); and (iii) the CMSA REO Status Report. In
addition, the Special Servicer shall from time to time provide the Master
Servicer with such information in the Special Servicer's possession regarding
the Specially Serviced Loans and REO Properties as may be requested by the
Master Servicer and is reasonably necessary for the Master Servicer to prepare
each report and any supplemental information required to be provided by the
Master Servicer to the Trustee.
(d) Beginning in September 2007, not later than 12:00 noon (New York
City time) on the third Business Day following each Determination Date (or with
respect to the CMSA Loan Periodic Update File, not later than 2:00 p.m. (New
York City time) on the second Business Day following each Determination Date
beginning in June 2007), the Master Servicer shall prepare (if and to the extent
necessary) and deliver or cause to be delivered to the Trustee, the Special
Servicer, the Directing Certificateholder (if the Directing Certificateholder is
not the same entity as the Special Servicer), and the related Companion Loan
Holder (if the related Whole Loan is involved) in a computer-readable medium
downloadable by the Trustee, the Special Servicer, the Directing
Certificateholder, the related Companion Loan Holder (if the related Whole Loan
is involved) (or, in the case of the Trustee, at the Trustee's written request,
in a form reasonably acceptable to the recipient, including on a loan-by-loan
basis), each of the files and reports listed in the definition of "CMSA Investor
Reporting Package" (other than the CMSA Bond Level File and the CMSA Collateral
Summary File, which are prepared by the Trustee), providing the most recent
information with respect to the Mortgage Pool as of the related Determination
Date (and which, in each case, if applicable, will identify each subject Loan by
loan number and property name).
The Master Servicer may, but is not required to, make any of the
reports or files comprising the CMSA Investor Reporting Package (other than the
CMSA Bond Level File and the CMSA Collateral Summary File, which are prepared by
the Trustee) available each month on the Master Servicer's website; provided
that the Master Servicer shall e-mail such reports or files to the Directing
Certificateholder and the related Companion Loan Holder (if a Whole Loan is
involved), until the Master Servicer's website is established. In connection
with providing access to the Master Servicer's website, the Master Servicer may
require registration and the acceptance of a disclaimer and otherwise (subject
to the preceding sentence) adopt reasonable rules and procedures, which may
include, to the extent the Master Servicer deems necessary or appropriate,
conditioning access on execution of an agreement governing the availability, use
and disclosure of such information, and which may provide indemnification to the
Master Servicer for any liability or damage that may arise therefrom.
(e) The Special Servicer shall deliver to the Master Servicer the
reports set forth in Section 3.12(b) and Section 3.12(c), and the Master
Servicer shall deliver to the Trustee and the Special Servicer the reports set
forth in Section 3.12(d), in an electronic format reasonably acceptable to the
Special Servicer, the Master Servicer and the Trustee. The Master Servicer may,
absent manifest error, conclusively rely on the reports to be provided by the
Special Servicer pursuant to Section 3.12(b) and Section 3.12(c). The Trustee
may, absent manifest error, conclusively rely on the reports to be provided by
the Master Servicer pursuant to Section 3.12(d). In the case of information or
reports to be furnished by the Master Servicer to the Trustee pursuant to
Section 3.12(d), to the extent that such information or reports are, in turn,
based on information or reports to be provided by the Special Servicer pursuant
to Section 3.12(b) or Section 3.12(c) and to the extent that such reports are to
be prepared and delivered by the Special Servicer pursuant to Section 3.12(b) or
Section 3.12(c), the Master Servicer shall have no obligation to provide such
information or reports to the Trustee until it has received the requisite
information or reports from the Special Servicer, and the Master Servicer shall
not be in default hereunder due to a delay in providing the reports required by
Section 3.12(d) caused by the Special Servicer's failure to timely provide any
information or report required under Section 3.12(b) or Section 3.12(c).
(f) Notwithstanding the foregoing, however, the failure of the
Master Servicer or the Special Servicer to disclose any information otherwise
required to be disclosed by this Section 3.12 shall not constitute a breach of
this Section 3.12 to the extent the Master Servicer or the Special Servicer so
fails because such disclosure, in the reasonable belief of the Master Servicer
or the Special Servicer, as the case may be, would violate any applicable law or
any provision of a loan document prohibiting disclosure of information with
respect to the Loans or Mortgaged Properties or would constitute a waiver of the
attorney-client privilege on behalf of the Trust. The Master Servicer and the
Special Servicer may disclose any such information or any additional information
to any Person so long as such disclosure is consistent with applicable law, the
related loan documents and the Servicing Standard. The Master Servicer or the
Special Servicer may affix to any information provided by it any disclaimer it
deems appropriate in its reasonable discretion (without suggesting liability on
the part of any other party hereto).
(g) The Depositor shall provide to the Master Servicer and the
Trustee the initial data (as of the respective Due Dates for the Loans in June
2007 or the most recent earlier date for which such data is available)
contemplated by the CMSA Loan Setup File, the CMSA Loan Periodic Update File,
the CMSA Operating Statement Analysis Report and the CMSA Property File. In
addition, the Depositor shall cause each Mortgage Loan Seller to prepare (or
cause to be prepared on its behalf) a CMSA Loan Set-Up File.
(h) If the Master Servicer or the Special Servicer is required to
deliver any statement, report or information under any provision of this
Agreement, the Master Servicer or the Special Servicer, as the case may be, may
satisfy such obligation by (x) physically delivering a paper copy of such
statement, report or information, (y) delivering such statement, report or
information in a commonly used electronic format or (z) making such statement,
report or information available on the Master Servicer's internet website or the
Trustee's Website, unless this Agreement expressly specifies a particular method
of delivery. Notwithstanding the foregoing, the Trustee may request delivery in
paper format of any statement, report or information required to be delivered to
the Trustee and clause (z) of this paragraph shall not apply to the delivery of
any information required to be delivered to the Trustee unless the Trustee
consents to such delivery.
Section 3.13 [RESERVED].
Section 3.14 [RESERVED].
Section 3.15 Access to Certain Information.
(a) Each of the Master Servicer and the Special Servicer shall
afford to the Trustee, the Depositor, each Rating Agency, the Directing
Certificateholder and the related Companion Loan Holder or any Controlling
Holder, as applicable (if a Whole Loan is involved), and to the OTS, the FDIC
and any other banking or insurance regulatory authority that may exercise
authority over any Certificateholder or Certificate Owner, access to any records
regarding the Loans and the servicing thereof within its control, except to the
extent it is prohibited from doing so by applicable law, the terms of the loan
documents or contract entered into prior to the Closing Date or to the extent
such information is subject to a privilege under applicable law to be asserted
on behalf of the Certificateholders. Such access shall be afforded without
charge but only upon reasonable prior written request and during normal business
hours at the offices of the Master Servicer or the Special Servicer, as the case
may be, designated by it; provided, however, Certificateholders and Certificate
Owners shall be required to pay their own photocopying costs. The Master
Servicer and the Special Servicer shall each be entitled to affix a reasonable
disclaimer to any information provided by it for which it is not the original
source (without suggesting liability on the part of any other party hereto). In
connection with providing access to such records to the Directing
Certificateholder and any related Companion Loan Holder or any Controlling
Holder, as applicable (if a Whole Loan is involved), the Master Servicer and the
Special Servicer may each require registration (to the extent access is provided
via the Master Servicer's internet website) and the acceptance of a reasonable
disclaimer and otherwise adopt reasonable rules and procedures, which may
include, to the extent the Master Servicer or the Special Servicer, as
applicable, deems necessary or reasonably appropriate, conditioning access on
the execution and delivery of an agreement reasonably governing the
availability, use and disclosure of such information. The failure of the Master
Servicer or the Special Servicer to provide access as provided in this Section
3.15 as a result of a confidentiality obligation shall not constitute a breach
of this Section 3.15. The Master Servicer and the Special Servicer may each deny
any of the foregoing persons access to confidential information or any
intellectual property that the Master Servicer or the Special Servicer is
restricted by license or contract from disclosing. In connection with providing
access to information pursuant to this Section 3.15 to parties other than the
Trustee, the Master Servicer and the Special Servicer may each (i) affix a
reasonable disclaimer to any information provided by it for which it is not the
original source (without suggesting liability on the part of any other party
hereto); (ii) affix to any information provided by it a reasonable statement
regarding securities law restrictions on such information and/or condition
access to information on the execution of a reasonable confidentiality
agreement; (iii) withhold access to confidential information or any intellectual
property; and (iv) withhold access to items of information contained in the
Servicing File for any Mortgage Loan if the disclosure of such items is
prohibited by applicable law or the provisions of any related loan documents or
would constitute a waiver of the attorney client privilege. Notwithstanding any
provision of this Agreement to the contrary, the failure of the Master Servicer
or the Special Servicer to disclose any information otherwise required to be
disclosed by it pursuant to this Agreement shall not constitute a breach of this
Agreement to the extent that the Master Servicer or the Special Servicer, as the
case may be, determines, in its reasonable good faith judgment consistent with
the applicable Servicing Standard, that such disclosure would violate applicable
law or any provision of a loan document or, in the case of a Whole Loan, any
document relating to the related Companion Loan prohibiting disclosure of
information with respect to the Mortgage Loans, the Companion Loan related to a
Whole Loan or the Mortgaged Properties, constitute a waiver of the attorney
client privilege on behalf of the Trust or the Trust Fund or otherwise
materially harm the Trust or the Trust Fund. Neither the Master Servicer nor the
Special Servicer shall be liable for providing or disseminating information in
accordance with the terms of this Agreement.
(b) Once a month, each of the Master Servicer and the Special
Servicer shall, without charge, make a knowledgeable Servicing Officer available
to answer questions from the Directing Certificateholder during regular business
hours at such time and for such duration as the Master Servicer or the Special
Servicer, as applicable, and the Directing Certificateholder shall reasonably
agree, regarding the performance and servicing of the Mortgage Loans and/of REO
Properties for which the Master Servicer or the Special Servicer, as the case
may be, is responsible. As a condition to such disclosure, the Directing
Certificateholder shall execute a confidentiality agreement substantially in the
form attached hereto as Exhibit M.
Section 3.16 Title to REO Property; REO Account.
(a) If title to any REO Property (other than any REO Property
related to any Non-Serviced Loan) is acquired, the deed or certificate of sale
shall be issued to the Trustee or its nominee, on behalf of the
Certificateholders and, if a Whole Loan is affected, the related Companion Loan
Holder or, subject to Section 3.09(b), to a single member limited liability
company of which the Trust is the sole member, which limited liability company
is formed or caused to be formed by the Special Servicer at the expense of the
Trust for the purpose of taking title to one or more REO Properties pursuant to
this Agreement. The limited liability company shall be (i) disregarded as an
entity separate from the Trust pursuant to Treasury Regulations Section
301.7701-3(b), and (ii) a manager-managed limited liability company, with the
Special Servicer to serve as the initial manager to manage the property of the
limited liability company, including any applicable REO Property (other than any
REO Property related to any Non-Serviced Loan), in accordance with the terms of
this Agreement as if such property was held directly in the name of the Trust or
Trustee under this Agreement. The Special Servicer, on behalf of the Trust (and
in the case of a Whole Loan, on behalf of the related Companion Loan Holder),
shall sell any REO Property (other than any REO Property related to any
Non-Serviced Loan) by the end of the third calendar year following the year in
which the Trustee on behalf of the Certificateholders and, if applicable, the
related Companion Loan Holder acquire ownership of such REO Property for
purposes of Section 860G(a)(8) of the Code, unless the Special Servicer either
(i) applies, more than 60 days prior to the expiration of such liquidation
period, and is granted an extension of time (an "REO Extension") by the IRS to
sell such REO Property or (ii) obtains for the Trustee an Opinion of Counsel,
addressed to the Trustee, to the effect that the holding by the Trust of such
REO Property subsequent to the end of the third calendar year following the year
in which such acquisition occurred will not result in an Adverse REMIC Event
with respect to either of REMIC I or REMIC II. Regardless of whether the Special
Servicer applies for or is granted the REO Extension contemplated by clause (i)
of the immediately preceding sentence or obtains the Opinion of Counsel referred
to in clause (ii) of such sentence, the Special Servicer shall act in accordance
with the Servicing Standard to liquidate such REO Property on a timely basis. If
the Special Servicer is granted such REO Extension or obtains such Opinion of
Counsel, the Special Servicer shall (i) promptly forward a copy of such REO
Extension or Opinion of Counsel to the Trustee, and (ii) sell such REO Property
within such extended period as is permitted by such REO Extension or
contemplated by such Opinion of Counsel, as the case may be. Any expense
incurred by the Special Servicer in connection with its applying for and being
granted the REO Extension contemplated by clause (i) of the third preceding
sentence or its obtaining the Opinion of Counsel contemplated by clause (ii) of
the third preceding sentence, and for the creation of and the operating of a
limited liability company, shall be covered by, and be reimbursable as, a
Servicing Advance. In the case of the Trust's beneficial interest in a Mortgaged
Property acquired under any Non-Serviced Loan Pooling and Servicing Agreement,
the Special Servicer shall coordinate with the applicable special servicer with
respect to any REO Extension on behalf of REMIC I.
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any REO Property (other than any REO
Property related to any Non-Serviced Loan) separate and apart from its own funds
and general assets. If an REO Acquisition shall occur, except as provided in the
immediately succeeding sentence, the Special Servicer shall establish and
maintain one or more REO Accounts, to be held on behalf of the Trustee in trust
for the benefit of the Certificateholders, for the retention of revenues and
other proceeds derived from each REO Property. If such REO Acquisition occurs
with respect to any Mortgaged Property securing a Whole Loan, the Special
Servicer shall establish an REO Account solely with respect to such property (a
"Whole Loan REO Account"), which may be a sub-account of the Pool REO Account,
to be held for the benefit of the Certificateholders and the related Companion
Loan Holder. Each REO Account shall be an Eligible Account and may consist of
one account for all the REO Properties. The Special Servicer shall deposit, or
cause to be deposited, into the related REO Account, within two Business Days of
receipt, all REO Revenues, Liquidation Proceeds (net of all Liquidation Expenses
paid therefrom) and Insurance Proceeds received in respect of an REO Property.
The Special Servicer is authorized to pay out of related Liquidation Proceeds
any Liquidation Expenses incurred in respect of an REO Property and outstanding
at the time such proceeds are received. Funds in an REO Account may be invested
only in Permitted Investments in accordance with Section 3.06. The Special
Servicer shall be entitled to make withdrawals from an REO Account to pay
itself, as Additional Special Servicing Compensation in accordance with Section
3.11(d), interest and investment income earned in respect of amounts held in
such REO Account as provided in Section 3.06(b) (but only to the extent of the
Net Investment Earnings with respect to the REO Account for any Collection
Period). The Special Servicer shall give notice to the other parties hereto and
if a Whole Loan is involved, the related Companion Loan Holder, of the location
of an REO Account when first established and of the new location of an REO
Account prior to any change thereof.
(c) The Special Servicer shall withdraw from the REO Account funds
necessary for the proper operation, management, maintenance and disposition of
any REO Property (other than any REO Property related to any Non-Serviced Loan),
but only to the extent of amounts on deposit in the applicable REO Account
relating to such REO Property. By 2:00 p.m., New York City time, on the Business
Day following the end of each Collection Period, the Special Servicer shall
withdraw from the related REO Account and deposit into the Certificate Account
or the applicable Whole Loan Custodial Account, as applicable, or deliver to the
Master Servicer (which shall deposit such amounts into the Certificate Account
or the applicable Whole Loan Custodial Account, as applicable), the aggregate of
all amounts received in respect of each such REO Property during such Collection
Period, net of any withdrawals made out of such amounts pursuant to the
preceding sentence; provided that the Special Servicer may retain in the
applicable REO Account such portion of such proceeds and collections as may be
necessary to maintain a reserve of sufficient funds for the proper operation,
management, leasing, maintenance and disposition of any such REO Property
(including the creation of a reasonable reserve for repairs, replacements,
necessary capital improvements and other related expenses), such reserve not to
exceed an amount sufficient to cover such items reasonably expected to be
incurred during the following 12-month period. For purposes of the foregoing,
the Pool REO Account and a Whole Loan REO Account correspond to the Certificate
Account and the related Whole Loan Custodial Account, respectively.
(d) The Special Servicer shall keep and maintain separate records,
on a property-by-property basis, for the purpose of accounting for all deposits
to, and withdrawals from, an REO Account pursuant to Section 3.16(b) or (c).
Section 3.17 Management of REO Property.
(a) If title to any REO Property (other than any REO Property
related to any Non-Serviced Loan) is acquired, the Special Servicer shall
manage, conserve, protect, operate and lease such REO Property for the benefit
of the Certificateholders (and, in the case of a Whole Loan, for the benefit of
the related Companion Loan Holder as a collective whole and, in the case of an
A/B Whole Loan, taking into account the subordination of the related A/B
Companion Loan) solely for the purpose of its timely disposition and sale in a
manner that does not cause such REO Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code or result in the
receipt by the Trust Fund of any "income from non permitted assets" within the
meaning of Section 860F(a)(2)(B) of the Code. Subject to the foregoing, however,
the Special Servicer shall have full power and authority to do any and all
things in connection therewith as are in the best interests of and for the
benefit of the Certificateholders (and, in the case of a Serviced Whole Loan,
for the benefit of the related Companion Loan Holder (as a collective whole and,
in the case of a Serviced Whole Loan that is an A/B Whole Loan, taking into
account the subordination of the related A/B Companion Loan) (as determined by
the Special Servicer in its good faith and reasonable judgment). Subject to this
Section 3.17, the Special Servicer may earn "net income from foreclosure
property" within the meaning of Section 860G(c) of the Code if it determines
that earning such income is in the best interests of Certificateholders, or, if
a Serviced Whole Loan is affected, the interests of the Certificateholders and
the related Companion Loan Holder (as a collective whole and, in the case of a
Serviced Whole Loan that is an A/B Whole Loan, taking into account the
subordination of the related A/B Companion Loan), on a net after-tax basis as
compared with net leasing such REO Property or operating such REO Property on a
different basis. In connection therewith, the Special Servicer shall deposit or
cause to be deposited on a daily basis (and in no event later than the second
Business Day following receipt of such funds), in the applicable REO Account all
revenues received by it with respect to each such REO Property and the related
REO Loan, and shall withdraw from the applicable REO Account, to the extent of
amounts on deposit therein with respect to such REO Property, funds necessary
for the proper operation, management, leasing, maintenance and disposition of
such REO Property, including, without limitation:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property, if
applicable; and
(iv) all costs and expenses necessary to maintain, lease and dispose
of such REO Property.
To the extent that amounts on deposit in the REO Account in respect
of any such REO Property are insufficient for the purposes set forth in clauses
(i) through (iv) of this Section 3.17(a) with respect to such REO Property, the
Special Servicer shall, subject to Section 3.19(d), direct the Master Servicer
to make (and the Master Servicer shall so make) Servicing Advances in such
amounts as are necessary for such purposes unless (as evidenced in the manner
contemplated by Section 3.11(g)) the Master Servicer determines, in its
reasonable, good faith judgment, that such payment would be a Nonrecoverable
Servicing Advance.
(b) Without limiting the generality of the foregoing, the Special
Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend any New
Lease with respect to any REO Property (other than any REO Property
related to any Non-Serviced Loan), if the New Lease by its terms will give
rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease
other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on any such REO Property,
other than the completion of a building or other improvement thereon, and
then only if more than 10% of the construction of such building or other
improvement was completed before default on the related Serviced Loan
became imminent, all within the meaning of Section 856(e)(4)(B) of the
Code; or
(iv) Directly Operate, or allow any other Person, other than an
Independent Contractor, to Directly Operate, any such REO Property on any
date more than 90 days after its acquisition date;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel (the cost of which shall be paid by the Master Servicer as a Servicing
Advance) to the effect that such action will not cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code at any time that it is held by the Trust Fund, in which case the
Special Servicer may take such actions as are specified in such Opinion of
Counsel.
(c) The Special Servicer shall contract with any Independent
Contractor for the operation and management of any REO Property (other than any
REO Property related to any Non-Serviced Loan) within 90 days of the acquisition
date thereof, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be an
expense of the Trust Fund), unless a Whole Loan is involved, in which case
such fees shall be netted out of collections on the REO Property prior to
being remitted to the Special Servicer) shall be reasonable and customary
in light of the nature and locality of the REO Property;
(iii) any such contract shall require, or shall be administered to
require, that the Independent Contractor (A) pay all costs and expenses
incurred in connection with the operation and management of such REO
Property, including, without limitation, those listed in Section 3.17(a),
and (B) remit all related revenues collected (net of its fees and such
costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties and
obligations hereunder with respect to the operation and management of any
such REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to
the same extent as if it alone were performing all duties and obligations
in connection with the operation and management of such REO Property.
The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for it related to its duties
and obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification. To the extent the costs of any contract with an
Independent Contractor for the operation and maintenance of any REO Property are
greater than the revenues from such REO Property (other than any REO Property
related to any Non-Serviced Loan), such excess costs shall be covered by and
reimbursable as a Servicing Advance.
(d) When and as necessary, the Special Servicer shall send to the
Trustee and the Master Servicer a statement prepared by the Special Servicer
setting forth the amount of net income or net loss, as determined for federal
income tax purposes, resulting from the operation and management of a trade or
business on, the furnishing or rendering of a non customary service to the
tenants of, or the receipt of any other amount not constituting Rents from Real
Property in respect of, any REO Property (other than any REO Property related to
any Non-Serviced Loan) in accordance with Sections 3.17(a) and 3.17(b).
Section 3.18 Resolution of Defaulted Serviced Loans and REO
Properties.
(a) The Master Servicer, the Special Servicer or the Trustee may
sell or purchase, or permit the sale or purchase of, a Loan or a related REO
Property (other than any REO Property related to any Non-Serviced Loan) only on
the terms and subject to the conditions set forth in this Section 3.18 or as
otherwise expressly provided in or contemplated by Section 2.03(a), Section
9.01, an Intercreditor Agreement, or, in the case of a Mortgage Loan with a
related Mezzanine Loan, pursuant to the terms of the related Mezzanine
Intercreditor Agreement, or, in the case of a Whole Loan pursuant to the terms
of the related Intercreditor Agreement.
(b) After the Master Servicer has pursuant to Section 3.21(a)
notified the Special Servicer of a Servicing Transfer Event and in connection
therewith has provided the Special Servicer with the information required under
Section 3.21(a) with respect to any Defaulted Serviced Loan, the Special
Servicer shall determine the fair value of such Defaulted Serviced Loan in
accordance with the Servicing Standard as hereinafter provided; provided,
however, such determination shall be made without taking into account any effect
the restrictions on the sale of such Mortgage Loan contained herein may have on
the value of such Defaulted Serviced Loan; provided, further, the Special
Servicer shall use reasonable efforts promptly to obtain an Appraisal with
respect to the related Mortgaged Property unless it has an Appraisal that is
less than 12 months old and has no actual knowledge of, or notice of, any event
that in the Special Servicer's judgment would materially affect the validity of
such Appraisal. The Special Servicer shall make its fair value determination as
soon as reasonably practicable (but in any event within 30 days) after its
receipt of such new Appraisal, if applicable. The Special Servicer will, from
time to time, but not less often than every 90 days, adjust its fair value
determination based upon changed circumstances, new information and other
relevant factors, if any, in each instance in accordance with the Servicing
Standard. The Special Servicer shall notify the Trustee, the Master Servicer,
the Majority Certificateholder of the Controlling Class and the related
Companion Loan Holder, if a Mortgage Loan is included in any Whole Loan is
involved, promptly upon its fair value determination and any adjustment thereto.
The Special Servicer shall also deliver to the Master Servicer, the Majority
Certificateholder of the Controlling Class and the related Companion Loan
Holder, if a Mortgage Loan included in any Whole Loan is involved, the most
recent Appraisal of the related Mortgaged Property then in the Special
Servicer's possession, together with such other third-party reports and other
information then in the Special Servicer's possession that the Special Servicer
reasonably believes to be relevant to the fair value determination with respect
to such Mortgage Loan (such materials are, collectively, the "Determination
Information"). Notwithstanding the foregoing, the Special Servicer shall not be
required to deliver the Determination Information to the Master Servicer, and
shall instead deliver the Determination Information to the Trustee, if the
Master Servicer will not be determining whether the Option Price represents fair
value for the Defaulted Serviced Loan, pursuant to Section 3.18(e). The
reasonable out-of-pocket costs and expenses incurred by the Special Servicer in
making its fair value determination shall be paid and reimbursed as a Servicing
Advance.
In determining the fair value of any Defaulted Serviced Loan, the
Special Servicer shall take into account, among other factors, the period and
amount of the delinquency on such Defaulted Serviced Loan, the occupancy level
and physical condition of the related Mortgaged Property, the state of the local
economy in the area where the Mortgaged Property is located, the time and
expense associated with a purchaser's foreclosing on the related Mortgaged
Property and the expected recoveries from pursuing a work-out or foreclosure
strategy instead of selling the Defaulted Serviced Loan to the Option Holder. In
addition, the Special Servicer shall refer to the Determination Information and
all other relevant information obtained by it or otherwise contained in the
Mortgage File and provided to the Special Servicer; provided that the Special
Servicer shall take account of any change in circumstances regarding the related
Mortgaged Property known to the Special Servicer that has occurred subsequent
to, and that would, in the Special Servicer's reasonable judgment, materially
affect the value of the related Mortgaged Property reflected in, the most recent
related Appraisal. Furthermore, the Special Servicer shall consider all
available objective third-party information obtained from generally available
sources, as well as information obtained from Independent vendors providing real
estate services to the Special Servicer, concerning the market for distressed
real estate loans and the real estate market for the subject property type in
the area where the related Mortgaged Property is located. The reasonable cost of
all third party consultants and related reports, including but not limited to
appraisals, inspection reports and broker opinions of value, reasonably incurred
by the Special Servicer pursuant to this Section 3.18(b) shall constitute, and
be reimbursable as, Servicing Advances. The other parties to this Agreement
shall cooperate with all reasonable requests for information.
(c) At the time a Mortgage Loan becomes a Defaulted Serviced Loan,
the Special Servicer and the Majority Certificateholder of the Controlling Class
(each, together with their assignees, an "Option Holder") will have an
assignable option (the "Purchase Option") to purchase such Defaulted Serviced
Loan, subject to the rights of the related Controlling Holder, if the Mortgage
Loan included in any A/B Whole Loan is involved, and subject to Section 3.18(l))
from the Trust Fund at a price (the "Option Price") equal to (A) if the Special
Servicer has not yet determined the fair value of such Defaulted Serviced Loan,
the sum of (1) the Stated Principal Balance thereof, together with all accrued
and unpaid interest thereon at the Mortgage Rate, (2) any related Prepayment
Premium then payable by the Mortgagor, to the extent the Special Servicer or the
Special Servicer's assignee is identified as the Person that will acquire the
related Mortgage Loan, (3) all related Advances for which the Trust Fund, the
Master Servicer, the Special Servicer or the Trustee has not been reimbursed,
together with all accrued and unpaid interest thereon at the Advance Rate, and
(4) all accrued Master Servicing Fees, Special Servicing Fees, Trustee Fees,
Liquidation Fees, Workout Fees and Additional Trust Fund Expenses allocable to
such Defaulted Serviced Loan whether recovered or unrecovered from the related
Mortgagor or (B) if the Special Servicer has determined the fair value of such
Defaulted Serviced Loan pursuant to Section 3.18(b), an amount at least equal to
such fair value with respect to any Purchase Option held by the Majority
Certificateholder of the Controlling Class or the Special Servicer only.
Notwithstanding the foregoing, for a period of 90 days after it receives notice
of the Special Servicer's fair value determination and the related expiration
(if any) of the applicable purchase option held by the related A/B Whole Loan
Purchase Option Holder (the "Option Period"), only the Purchase Option held by
the Majority Certificateholder of the Controlling Class may be exercised.
Notwithstanding the foregoing and for the avoidance of doubt, none of the
Majority Certificateholder of the Controlling Class, the related A/B Whole Loan
Purchase Option Holder or the related Mezzanine Loan Holder (with respect to a
Mezzanine Loan), shall be required to pay a Liquidation Fee with respect to any
applicable purchase right under this Agreement or in the applicable
Intercreditor Agreement or with respect to a purchase of a related Defaulted
Serviced Loan at its fair value as determined in this Section 3.18 if such
purchase occurs or purchase right is exercised not later than 90 days from the
date that the Special Servicer has initially determined the fair value for the
related Defaulted Serviced Loan.
Any Option Holder may sell, transfer, assign or otherwise convey its
Purchase Option with respect to any Defaulted Serviced Loan to any party (other
than a Person whose acquisition of the Defaulted Serviced Loan would violate the
terms of any related intercreditor or similar agreement) at any time after the
related Mortgage Loan becomes a Defaulted Serviced Loan. The transferor of any
Purchase Option shall notify the Trustee and the Master Servicer of such
transfer and such notice shall include the transferee's name, address, telephone
number, facsimile number and appropriate contact person(s) and shall be
acknowledged in writing by the transferee.
Notwithstanding the foregoing, the Majority Certificateholder of the
Controlling Class shall have the right to exercise its Purchase Option prior to
any exercise of the Purchase Option by the Special Servicer; provided, however,
if the Purchase Option is not exercised by the Majority Certificateholder of the
Controlling Class or any assignee thereof within 60 days of a Mortgage Loan
becoming a Defaulted Serviced Loan, then the Special Servicer shall have the
right to exercise its Purchase Option prior to any exercise by the Majority
Certificateholder of the Controlling Class and the Special Servicer or its
assignee may exercise such Purchase Option at any time during the 30-day period
immediately following the expiration of such 60-day period Following the
expiration of each such 30-day period, the Majority Certificateholder of the
Controlling Class shall again have the exclusive right to exercise the Purchase
Option.
Each Option Holder's Purchase Option with respect to any Defaulted
Serviced Loan, if not exercised, will automatically terminate (A) once the
related Defaulted Serviced Loan is no longer a Defaulted Serviced Loan;
provided, however, if such Mortgage Loan subsequently becomes a Defaulted
Serviced Loan, the related Purchase Option shall again be exercisable, (B) upon
the acquisition, by or on behalf of the Trust Fund, of title to the related
Mortgaged Property through foreclosure or deed-in-lieu of foreclosure, (C) upon
the modification or pay-off, in full or at a discount, of such Defaulted
Serviced Loan in connection with a workout, or (D) subject to the Master
Servicer's determination set forth in Section 3.18(e), upon another Option
Holder's exercise of its Purchase Option with respect to the related Mortgage
Loan becoming effective pursuant to Section 3.18(d).
(d) Upon receipt of notice from the Special Servicer indicating that
a Mortgage Loan has become a Defaulted Serviced Loan, and after the expiration
of the Option Period, each Option Holder (whether the original grantee of such
option or any subsequent transferee) may exercise its Purchase Option by
providing the Master Servicer and the Trustee written notice thereof (the
"Purchase Option Notice"), in the form of Exhibit I, which notice shall identify
the Person that, on its own or through an Affiliate, will acquire the related
Mortgage Loan upon closing and shall specify a cash exercise price at least
equal to the Option Price. Immediately upon receipt of such Purchase Option
Notice, the Master Servicer shall notify the remaining Option Holders that a
Purchase Option has been exercised. Within ten days thereafter, each remaining
Option Holder may submit to the Master Servicer and the Trustee a Purchase
Option Notice for the related Defaulted Serviced Loan. Upon the expiration of
such ten-day period, or such sooner time as all remaining Option Holders have
submitted Purchase Option Notices, the Master Servicer shall notify the Option
Holder whose Purchase Option Notice included the highest exercise price that the
exercise of its Purchase Option is effective. The Master Servicer shall also
notify the Trustee of such effective exercise. In the event that more than one
Option Holder exercises its Purchase Option at the same price, the Purchase
Option Notice first received by the Master Servicer shall be effective. The
exercise of any Purchase Option pursuant to this Section 3.18(d) shall be
irrevocable.
(e) If the Special Servicer or any Controlling Class Option Holder,
or any of their respective Affiliates, is identified in the Purchase Option
Notice as the Person expected to acquire the related Mortgage Loan, and the
Option Price is based upon the Special Servicer's fair value determination, the
Master Servicer shall determine whether the Option Price represents fair value
for the Defaulted Serviced Loan, in the manner set forth in Section 3.18(b) and
as soon as reasonably practicable but in any event within 30 days (except as
such period may be extended as set forth in this paragraph) of its receipt of
the Purchase Option Notice and Determination Information from the Special
Servicer. In determining whether the Option Price represents the fair value of
such Defaulted Serviced Loan, the Master Servicer may obtain an opinion as to
the fair value of such Defaulted Serviced Loans, taking into account the factors
set forth in Section 3.18(b), from a Qualified Appraiser or other Independent
expert of recognized standing having experience in evaluating the value of
defaulted mortgage loans, which opinion shall be based on a review, analysis and
evaluation of the Determination Information, and to the extent such Qualified
Appraiser or third party deems any such Determination Information to be
defective, incorrect, insufficient or unreliable, such Person may base its
opinion on such other information it deems reasonable or appropriate, and,
absent manifest error, the Master Servicer may conclusively rely on the opinion
of any such Person that was chosen by the Master Servicer with reasonable care.
Notwithstanding the 30-day time period referenced above in this paragraph, the
Master Servicer will have an additional 15 days to make a fair value
determination if the Person referenced in the immediately preceding sentence has
determined that the Determination Information is defective, incorrect,
insufficient or unreliable. The reasonable costs of all appraisals, inspection
reports and opinions of value, reasonably incurred by the Master Servicer or any
such third party pursuant to this paragraph shall be advanced by the Master
Servicer and shall constitute, and be reimbursable as, Servicing Advances. In
connection with the Master Servicer's determination of fair value, the Special
Servicer shall deliver to the Master Servicer the Determination Information for
the use of the Master Servicer or any such third party.
Notwithstanding anything contained in this Section 3.18(e) to the
contrary, if the Special Servicer or the Majority Certificateholder of the
Controlling Class, or any of their respective Affiliates, is identified in the
Purchase Option Notice as the Person expected to acquire the related Mortgage
Loan, and the Option Price is based upon the Special Servicer's fair value
determination, and the Master Servicer and the Special Servicer are Affiliates,
the Trustee shall determine whether the Option Price represents fair value for
the Defaulted Serviced Loan, in the manner set forth in Section 3.18(b) and as
soon as reasonably practicable but in any event within 30 days (except as such
period may be extended as set forth in this paragraph) of its receipt of the
Purchase Option Notice and Determination Information from the Special Servicer.
In determining whether the Option Price represents the fair value of such
Defaulted Serviced Loan, the Trustee may obtain an opinion as to the fair value
of such Defaulted Serviced Loans, taking into account the factors set forth in
Section 3.18(b), from a Qualified Appraiser or other Independent expert of
recognized standing having experience in evaluating the value of defaulted
mortgage loans, which opinion shall be based on a review, analysis and
evaluation of the Determination Information, and to the extent such Qualified
Appraiser or third party deems any such Determination Information to be
defective, incorrect, insufficient or unreliable, such Person may base its
opinion on such other information it deems reasonable or appropriate, and absent
manifest error, the Trustee may conclusively rely on the opinion of any such
Person that was chosen by the Trustee with reasonable care. Notwithstanding the
30-day time period referenced above in this paragraph, the Trustee will have an
additional 15 days to make a fair value determination if the Person referenced
in the immediately preceding sentence has determined that the Determination
Information is defective, incorrect, insufficient or unreliable. The reasonable
costs of all appraisals, inspection reports and opinions of value, reasonably
incurred by the Trustee or any such third party pursuant to this paragraph shall
be advanced by the Master Servicer and shall constitute, and be reimbursable as,
Servicing Advances. In connection with the Trustee's determination of fair value
the Special Servicer shall deliver to the Trustee the Determination Information
for the use of the Trustee or any such third party.
In the event a designated third party determines that the Option
Price is less than the fair value of the Defaulted Serviced Loan, such party
shall provide its determination, together with all information and reports it
relied upon in making such determination, to the Special Servicer, who shall
then adjust its fair value determination and, consequently, the Option Price,
pursuant to Section 3.18(b). The Special Servicer shall promptly provide written
notice of any adjustment of the Option Price to the Option Holder whose Purchase
Option has been declared effective pursuant to Section 3.18(d). Upon receipt of
such notice, such Option Holder shall have three Business Days to (i) accept the
Option Price as adjusted and proceed in accordance with Section 3.18(f), or (ii)
reject the Option Price as adjusted, in which case such Option Holder shall not
be obligated to close the purchase of the Defaulted Serviced Loan. Upon notice
from such Option Holder, or the Special Servicer, that such Option Holder
rejects the Option Price as adjusted, the Master Servicer and the Trustee shall
provide the notices described in the second paragraph of Section 3.18(f) and
thereafter any Option Holder may exercise its purchase option in accordance with
this Section 3.18, at the Option Price as adjusted.
(f) The Option Holder whose Purchase Option is declared effective
pursuant to Section 3.18(d) shall be required to pay the purchase price
specified in its Purchase Option Notice to the Master Servicer within ten
Business Days of its receipt of the Master Servicer's notice confirming that the
exercise of its Purchase Option is effective. Upon receipt of an Officer's
Certificate from the Master Servicer specifying the date for closing the
purchase of the related Defaulted Serviced Loan, and the purchase price to be
paid therefor, the Trustee shall deliver at such closing for release to or at
the direction of such Option Holder, the related Mortgage File, and shall
execute and deliver such instruments of transfer or assignment, in each case
without recourse, as shall be provided to it by such Option Holder and are
reasonably necessary to vest in the purchaser or any designee thereof the
ownership of such Mortgage Loan. In connection with any such purchase by any
Person other than it, the Special Servicer shall deliver the related Mortgage
File to or at the direction of the purchaser. In any case, the Master Servicer
shall deposit the purchase price into the Certificate Account within one
Business Day following receipt.
The Master Servicer shall immediately notify the Trustee and the
Special Servicer upon the holder of the effective Purchase Option's failure to
remit the purchase price specified in its Purchase Option Notice pursuant to
this Section 3.18(f). Thereafter, the Trustee shall notify each Option Holder of
such failure and any Option Holder may then exercise its purchase option in
accordance with this Section 3.18.
(g) Unless and until the Purchase Option with respect to any
Defaulted Serviced Loan is exercised, the Special Servicer shall pursue such
other resolution strategies with respect to such Defaulted Serviced Loan
including workout, foreclosure and sale of any REO Property, as the Special
Servicer may deem appropriate, consistent with the Asset Status Report and the
Servicing Standard; provided, however, the Special Servicer shall not sell any
Defaulted Serviced Loan (other than in connection with exercise of a related
Purchase Option).
(h) The Special Servicer shall sell an REO Property (other than any
REO Property related to any Non-Serviced Loan) in the manner set forth in
Section 3.16(a). The Special Servicer may purchase any REO Property (other than
any REO Property related to any Non-Serviced Loan) at the Purchase Price
therefor. The Special Servicer may also offer to sell to any Person any REO
Property (other than any REO Property related to any Non-Serviced Loan), if and
when the Special Servicer determines, consistent with the Servicing Standard,
that such a sale would be in the best economic interests of the Trust Fund. The
Special Servicer shall give the Trustee, the Master Servicer and the Directing
Certificateholder and the related Companion Loan Holder (if a Whole Loan is
involved), not less than ten days' prior written notice of its intention to sell
any such REO Property, in which case the Special Servicer shall accept the
highest offer received from any Person for any such REO Property in an amount at
least equal to the Purchase Price therefor. To the extent permitted by
applicable law, and subject to the Servicing Standard, the Master Servicer, an
Affiliate of the Master Servicer, the Special Servicer or an Affiliate of the
Special Servicer, or an employee of any of them may act as broker in connection
with the sale of any such REO Property and may retain from the proceeds of such
sale a brokerage commission that does not exceed the commission that would have
been earned by an independent broker pursuant to a brokerage agreement entered
into at arm's length.
In the absence of any such offer, the Special Servicer shall accept
the highest offer received from any Person that is determined by the Special
Servicer to be a fair price for such REO Property, if the highest offeror is a
Person other than the Special Servicer, the Master Servicer (if the Master
Servicer and Special Servicer are Affiliates) or the Majority Certificateholder
of the Controlling Class (provided that the Majority Certificateholder of the
Controlling Class is an Affiliate of the Special Servicer), or any of their
respective Affiliates, or if such price is determined to be such a price by the
Trustee, if the highest offeror is the Special Servicer, the Master Servicer (if
the Master Servicer and Special Servicer are Affiliates) or the Majority
Certificateholder of the Controlling Class, or any of their respective
Affiliates. Notwithstanding anything to the contrary herein, neither the
Trustee, in its individual capacity, nor any of its Affiliates may make an offer
for or purchase any such REO Property pursuant hereto.
The Special Servicer shall not be obligated by either of the
foregoing paragraphs or otherwise to accept the highest offer if the Special
Servicer determines, in accordance with the Servicing Standard, that rejection
of such offer would be in the best interests of the Certificateholders. In
addition, the Special Servicer may accept a lower offer if it determines, in
accordance with the Servicing Standard that acceptance of such offer would be in
the best interests of the Certificateholders (for example, if the prospective
buyer making the lower offer is more likely to perform its obligations, or the
terms offered by the prospective buyer making the lower offer are more
favorable).
In determining whether any offer received from the Special Servicer,
the Master Servicer (if the Master Servicer and Special Servicer are Affiliates)
or the Majority Certificateholder of the Controlling Class, or any of their
respective Affiliates represents a fair price for any such REO Property (other
than any REO Property related to any Non-Serviced Loan), the Trustee shall
obtain and may conclusively rely on an Appraisal from a Qualified Appraiser, at
the expense of the Trust Fund. In determining whether any offer constitutes a
fair price for any such REO Property, the Trustee (or, if applicable, such
Qualified Appraiser) shall take into account, and any appraiser shall be
instructed to take into account, as applicable, among other factors, the
physical condition of such REO Property, the state of the local economy and the
Trust Fund's obligation to comply with REMIC Provisions.
(i) Subject to the Servicing Standard and the REMIC Provisions, the
Special Servicer shall act on behalf of the Trust Fund in negotiating and taking
any other action necessary or appropriate in connection with the sale of any
such REO Property, including the collection of all amounts payable in connection
therewith. A sale of any such REO Property shall be without recourse to, or
representation or warranty by, the Trustee, the Depositor, any Servicer, or the
Trust Fund (except that any contract of sale and assignment and conveyance
documents may contain customary representations and warranties of title,
condition and authority so long as the only recourse for breach thereof is to
the Trust Fund) and, if consummated in accordance with the terms of this
Agreement, none of the Master Servicer, the Special Servicer, the Depositor or
the Trustee shall have any liability to the Trust Fund or any Certificateholder
with respect to the purchase price therefor accepted by the Special Servicer or
the Trustee.
(j) The Special Servicer shall, within two Business Days following
its receipt of available funds, remit to the Master Servicer the proceeds of any
sale after deduction of the expenses of such sale incurred in connection
therewith for deposit into the Certificate Account. The Trustee, upon receipt of
an Officer's Certificate from the Master Servicer to the effect that such
deposit has been made, shall release or cause to be released to the party or
parties effecting such purchase (or any designee thereof) the related Mortgage
File, and shall execute and deliver such instruments of transfer or assignment,
in each case without recourse, as shall be provided to it and are reasonably
necessary to vest in the purchaser of such Defaulted Serviced Loan effecting
such purchase (or any designee thereof) ownership of such Defaulted Serviced
Loan. In connection with any such purchase, the Special Servicer shall deliver
the related Servicing File to the purchaser of such Defaulted Serviced Loan with
the cooperation of the Master Servicer effecting such purchase (or any designee
thereof).
(k) Subject to Sections 3.18(a) through 3.18(j), the Special
Servicer shall act on behalf of the Trustee in negotiating and taking any other
action necessary or appropriate in connection with the sale of any Defaulted
Serviced Loan or REO Property (other than any REO Property related to any
Non-Serviced Loan), and the collection of all amounts payable in connection
therewith. In connection therewith, the Special Servicer may charge prospective
offerors, and may retain, fees that approximate the Special Servicer's actual
costs in the preparation and delivery of information pertaining to such sales or
evaluating offers without obligation to deposit such amounts into the
Certificate Account or if a Whole Loan is involved, in the related Whole Loan
Custodial Account; provided no such fees and charges shall be charged by the
Special Servicer to the Controlling Class Option Holder or any assignee in
connection with the sale of Defaulted Serviced Loans. Any sale of a Defaulted
Serviced Loan or any REO Property shall be final and without recourse to the
Trustee or the Trust except as provided in Section 3.18(i), and if such sale is
consummated in accordance with the terms of this Agreement, none of the
Depositor, the Special Servicer, the Master Servicer or the Trustee shall have
any liability to any Certificateholder with respect to the purchase price
therefor accepted by the Special Servicer or the Trustee.
(l) The Purchase Option with respect to the Parkway
Chevrolet-Tomball A/B Whole Loan is subject to the purchase rights of the
Parkway Chevrolet-Tomball Note B Holder in accordance with the terms of and as
set forth in the related Intercreditor Agreement.
(m) Notwithstanding anything to the contrary herein, each Mezzanine
Lender may be entitled to purchase the related Mortgage Loan in accordance with
the terms and conditions set forth in the related Mezzanine Intercreditor
Agreement, even after it has been purchased out of the Trust Fund pursuant to
this Section 3.18 and (ii) the related Note B Holder may be entitled to purchase
the related A/B Whole Loan in accordance with the terms and conditions set forth
in Section (12) of the Parkway Chevrolet-Tomball Intercreditor Agreement, even
after it has been purchased out of the Trust Fund pursuant to this Section 3.18.
Any purchase of a Specially Serviced Loan that is purchased pursuant to this
Section 3.18 will remain subject to the purchase rights of, in each case if
applicable: (1) the related Mezzanine Lender, if any, as set forth in the
related Mezzanine Intercreditor Agreement and (2) the related Controlling Holder
as set forth in the related Intercreditor Agreement with respect to such A/B
Whole Loans.
(n) Notwithstanding anything in this Agreement to contrary, in no
event with respect to the Parkway Chevrolet-Tomball A/B Whole Loan will the
related Mortgagor (or any of its affiliates) be permitted to purchase such
Mortgage Loan should such Mortgage Loan become a Defaulted Serviced Loan under
this Agreement.
(o) With respect to each Whole Loan with a related Non-Serviced
Companion Loan, upon the Trustee having actual knowledge that the related
Mortgage Loan has become a Defaulted Loan, the Trustee shall promptly notify, in
writing, each related Companion Loan Holder (such notice shall include the
option price for such Non-Serviced Companion Loan as determined by the Special
Servicer based on the same methodology for determining the fair value of the
related Mortgage Loan) or if such Non-Serviced Companion Loan has been
securitized, the applicable trustee under the Non-Serviced Pooling and Servicing
Agreement (who shall be instructed to promptly notify, in writing, the
"controlling class representative" (as defined in the related Non-Serviced
Pooling and Servicing Agreement) of that securitization or an analogous party).
Upon receipt of such notice, the related "controlling class representative" (as
defined in the related Non-Serviced Pooling and Servicing Agreement) or
analogous party shall have the right, at its option, to purchase any
Non-Serviced Companion Loan from the trust established pursuant to the related
Non-Serviced Pooling and Servicing Agreement for a price determined by the
Special Servicer in accordance with Section 3.18 hereof, with respect to such
Non-Serviced Companion Loan. Such Purchase Option shall otherwise be on the same
terms as the Purchase Option provided to the Option Holder in Section 3.18(a)
mutatis mutandis.
Section 3.19 Additional Obligations of the Master Servicer and the
Special Servicer.
(a) The Master Servicer shall maintain at its Primary Servicing
Office and shall, upon reasonable advance written notice, make available for
review by each Rating Agency and by any Certificateholder or Certificate Owner
or any Person identified to the Master Servicer as a prospective transferee of a
Certificate or an interest therein, copies of the Servicing Files; provided
that, if the Master Servicer in its reasonable, good faith determination
believes that any item of information contained in such Servicing Files is of a
nature that it should be conveyed to all Certificateholders at the same time, it
shall, as soon as reasonably possible following its receipt of any such item of
information, disclose such item of information to the Trustee as part of the
reports to be delivered to the Trustee by the Master Servicer pursuant to
Section 4.02(b), and until the Trustee has either disclosed such information to
all Certificateholders in a Distribution Date Statement or has properly filed
such information with the Commission on behalf of the Trust under the Exchange
Act, the Master Servicer shall be entitled to withhold such item of information
from any Certificateholder or Certificate Owner or prospective transferee of a
Certificate or an interest therein; and provided, further, the Master Servicer
shall not be required to make particular items of information contained in the
Servicing File for any Loan available to any Person if the disclosure of such
particular items of information is expressly prohibited by applicable law or the
provisions of any related loan documents. Except as set forth in the provisos to
the preceding sentence, copies of all or any portion of any Servicing File are
to be made available by the Master Servicer upon request; however, the Master
Servicer shall be permitted to require payment of a sum sufficient to cover the
reasonable out-of-pocket costs for making such copies (other than with respect
to the Rating Agencies and the Majority Certificateholder of the Controlling
Class). The Special Servicer shall, as to each Specially Serviced Loan and REO
Property (other than any REO Property related to any Non-Serviced Loan),
promptly deliver to the Master Servicer a copy of each document or instrument
added to the related Servicing File, and the Master Servicer shall in no way be
in default under this Section 3.19(a) solely by reason of the Special Servicer's
failure to do so.
In connection with providing access to or copies of the items
described in the preceding paragraph, the Master Servicer may require, unless
the Depositor directs otherwise, (a) in the case of Certificate Owners, a
written confirmation executed by the requesting Person, in form reasonably
satisfactory to the Master Servicer, generally to the effect that such Person is
a beneficial holder of Certificates and will otherwise keep such information
confidential and (b) in the case of a prospective purchaser, confirmation
executed by the requesting Person generally to the effect that such Person is a
prospective purchaser of a Certificate or an interest therein, is requesting the
information for use in evaluating a possible investment in Certificates and will
otherwise keep such information confidential. All Certificateholders, by the
acceptance of their Certificates, shall be deemed to have agreed to keep such
information confidential, except to the extent that the Depositor grants written
permission to the contrary or to the extent such information is public
information. The Master Servicer shall not be liable for the dissemination of
information in accordance with this Section 3.19(a).
(b) Promptly following the occurrence of an Appraisal Trigger Event
with respect to any Mortgage Loan or Whole Loan (other than any Non-Serviced
Loan) (each such Mortgage Loan or Whole Loan and any related REO Loan, until it
ceases to be such in accordance with the following paragraph, a "Required
Appraisal Serviced Loan"), the Special Servicer shall obtain (or, if such
Required Appraisal Serviced Loan has a Stated Principal Balance of $2,000,000 or
less, at its discretion, conduct) an Appraisal of the related Mortgaged
Property, unless an Appraisal thereof had previously been obtained (or, if
applicable, conducted) within the preceding 12-month period and there has been
no subsequent material change in the circumstances surrounding the related
Mortgaged Property that, in the judgment of the Special Servicer, would
materially affect the value of the property, and shall deliver a copy of such
Appraisal to the Trustee, the Master Servicer, the Directing Certificateholder
and any Requesting Subordinate Certificateholder, the related Companion Loan
Holder (if a Whole Loan is involved) and any Holder of a Non-Registered
Certificate (other than a Class V, Class R-I or Class R-II Certificate),
subject, in each instance, to the second paragraph of Section 12.10(b). If such
Appraisal is obtained from a Qualified Appraiser, the cost thereof shall be
covered by, and be reimbursable as, a Servicing Advance. Promptly following the
receipt of, and based upon, such Appraisal, the Special Servicer shall determine
and report to the Trustee, the Master Servicer, the Directing Certificateholder,
the related Companion Loan Holder (if a Whole Loan is involved) and any Holder
of a Non-Registered Certificate (other than a Class V, Class R-I or Class R-II
Certificate), subject, in each instance, to Section 12.10(b), the then
applicable Appraisal Reduction Amount, if any, with respect to the subject
Required Appraisal Serviced Loan.
For so long as any Serviced Loan or REO Loan remains a Required
Appraisal Serviced Loan, the Special Servicer shall, within 30 days of each
anniversary of such loan's having become a Required Appraisal Serviced Loan,
obtain (or, if such Required Appraisal Serviced Loan has a Stated Principal
Balance of $2,000,000 or less, at its discretion, conduct) an update of the
prior Appraisal, and shall deliver a copy of such update to the Trustee, the
Master Servicer, the Directing Certificateholder, the related Companion Loan
Holder (if a Whole Loan is involved) and any Holder of a Non-Registered
Certificate (other than a Class V, Class R-I or Class R-II Certificate),
subject, in each instance, to Section 12.10(b). If such update is obtained from
a Qualified Appraiser, the cost thereof shall be covered by, and be reimbursable
as, a Servicing Advance. Promptly following the receipt of, and based upon, such
update, the Special Servicer shall redetermine and report to the Trustee, the
Master Servicer, the Directing Certificateholder, the related Companion Loan
Holder or any Controlling Holder, as applicable, related to a Whole Loan
(subject, in each instance, to Section 12.10(b)) and any Holder of a
Non-Registered Certificate (other than a Class V, Class R-I or Class R-II
Certificate subject to Section 12.10(b)), the then applicable Appraisal
Reduction Amount, if any, with respect to the subject Required Appraisal
Serviced Loan.
The Directing Certificateholder and the related Companion Loan
Holder (if a Whole Loan is involved and to the extent so provided in the
applicable Intercreditor Agreement) have the right at any time to require that
the Special Servicer obtain a new Appraisal of the subject Mortgaged Property in
accordance with MAI standards from a Qualified Appraiser selected by the Special
Servicer, at the expense of the requesting party. Upon receipt of such Appraisal
the Special Servicer shall deliver a copy thereof to the Trustee, the Master
Servicer, the Directing Certificateholder and the related Companion Loan Holder
(if a Whole Loan is involved). Promptly following the receipt of, and based
upon, such Appraisal, the Special Servicer shall redetermine and report to the
Trustee, the Master Servicer, the Directing Certificateholder and the related
Companion Loan Holder (if a Whole Loan is involved), the then applicable
Appraisal Reduction Amount, if any, with respect to the subject Required
Appraisal Serviced Loan.
(c) The Master Servicer and the Special Servicer shall each deliver
to the other, to the Trustee (but only upon its request), to the Directing
Certificateholder and the related Companion Loan Holder (if a Whole Loan is
involved) copies of all Appraisals, environmental reports and engineering
reports (or, in each case, updates thereof) obtained by it with respect to any
Mortgaged Property or REO Property. Upon the request of any Rating Agency or any
Holder of a Non-Registered Certificate (except a Class V, Class R-I or Class
R-II Certificate), pursuant to Section 8.12(b), the Trustee will inform the
Master Servicer or Special Servicer, as applicable, of such request and, if
necessary, the Master Servicer or Special Servicer, as applicable, will deliver
instructions, whereupon either such party, as applicable, shall deliver copies
of any of the items delivered pursuant to the preceding sentence to such
requesting Person.
(d) No more frequently than once per calendar month, the Special
Servicer may require the Master Servicer, and the Master Servicer shall be
obligated subject to the second following paragraph to reimburse the Special
Servicer for any Servicing Advances that were made by the Special Servicer
(notwithstanding the fact that it has no obligation to make such Servicing
Advances), but not previously reimbursed (whether pursuant to this Section
3.19(d) or otherwise) to the Special Servicer, and to pay the Special Servicer
interest thereon at the Reimbursement Rate from the date made to, but not
including, the date of reimbursement. Such reimbursement and any accompanying
payment of interest shall be made within ten days of the request therefor by
wire transfer of immediately available funds to an account designated by the
Special Servicer. Upon the Master Servicer's reimbursement to the Special
Servicer of any Servicing Advance and payment to the Special Servicer of
interest thereon, all in accordance with this Section 3.19(d), the Master
Servicer shall for all purposes of this Agreement be deemed to have made such
Servicing Advance at the same time as the Special Servicer originally made such
Advance, and accordingly, the Master Servicer shall be entitled to reimbursement
for such Advance, together with Advance Interest thereon, at the same time, in
the same manner and to the same extent as the Master Servicer would otherwise
have been entitled if it had actually made such Servicing Advance.
Notwithstanding anything to the contrary contained in this
Agreement, if the Special Servicer (i) is required under any other provision of
this Agreement to direct the Master Servicer to make a Servicing Advance or (ii)
is otherwise aware a reasonable period in advance that it is reasonably likely
that the Special Servicer will incur a cost or expense that will, when incurred,
constitute a Servicing Advance, the Special Servicer shall (in the case of
clause (i) of this sentence), and shall use reasonable efforts to (in the case
of clause (ii) of this sentence), request that the Master Servicer make such
Servicing Advance, such request to be made in writing and confirmed by both
parties and in a timely manner that does not materially and adversely affect the
interests of any Certificateholder, and accompanied by sufficient information
for the Master Servicer to make recoverability determinations, and at least ten
Business Days prior to the date on which failure to make such Servicing Advance
would (with notice from the Trustee regardless of whether such notice is
actually received) constitute an Event of Default pursuant to Section
7.01(a)(v); provided, however, the Special Servicer (with respect to Specially
Serviced Loans and REO Properties) is allowed but not required to make any
Servicing Advance that it fails to timely request the Master Servicer to make.
Subject to the following paragraph, the Master Servicer shall have the
obligation to make any such Servicing Advance that it is requested by the
Special Servicer to make within five Business Days of the Master Servicer's
receipt of such request and such information and documents as are reasonably
necessary for the Master Servicer to make such Servicing Advance and to
determine recoverability. The Master Servicer shall be entitled to reimbursement
for any Servicing Advance made by it at the direction of the Special Servicer,
together with Advance Interest thereon, at the same time, in the same manner and
to the same extent as the Master Servicer is entitled with respect to any other
Servicing Advance made thereby.
Notwithstanding the foregoing provisions of this Section 3.19(d) or
any other provision of this Agreement to the contrary, the Master Servicer shall
not be required to reimburse the Special Servicer for, or make at the Special
Servicer's direction, any Servicing Advance if the Master Servicer determines in
its reasonable, good faith judgment that the Servicing Advance that the Special
Servicer is directing the Master Servicer to reimburse it for or make hereunder,
although not characterized by the Special Servicer as a Nonrecoverable Servicing
Advance, is or would be, if made, a Nonrecoverable Servicing Advance. The Master
Servicer shall notify the Special Servicer and the Trustee in writing of such
determination. Such notice shall not obligate the Special Servicer to make such
Servicing Advance.
(e) The Master Servicer shall deliver to the Trustee for deposit
into the Distribution Account by 1:30 p.m. (New York City time) on each Master
Servicer Remittance Date, without any right of reimbursement therefor, a cash
payment (a "Compensating Interest Payment") in an amount equal to the sum of (i)
the aggregate amount of Balloon Payment Interest Shortfalls, if any, incurred in
connection with Balloon Payments received in respect of the Mortgage Pool (other
than Mortgage Loans that are Specially Serviced Mortgage Loans or Defaulted
Loans) during the most recently ended Collection Period, plus (ii) the lesser of
(A) the aggregate amount of Prepayment Interest Shortfalls, if any, incurred in
connection with Principal Prepayments received in respect of the Mortgage Pool
(other than Mortgage Loans that are Specially Serviced Mortgage Loans or
Defaulted Loans and other than shortfalls arising in connection with the payment
of insurance proceeds or condemnation proceeds) during the most recently ended
Collection Period, and (B) the aggregate of (1) that portion of its Master
Servicing Fees for the related Collection Period that is, in the case of each
and every Loan and REO Loan for which such Master Servicing Fees are being paid
in such Collection Period, calculated at 0.01% per annum, and (2) all Prepayment
Interest Excesses received in respect of the Mortgage Pool during the most
recently ended Collection Period, plus (iii) in the event that any Principal
Prepayment was received on the last Business Day of the second most recently
ended Collection Period, but for any reason was not included as part of the
Master Servicer Remittance Amount for the preceding Master Servicer Remittance
Date (other than because of application of the subject Principal Prepayment in
accordance with Section 3.05(a) for another purpose), the total of all interest
and other income accrued or earned on the amount of such Principal Prepayment
while it is on deposit in the Certificate Account or, in the case of a Mortgage
Loan included in a Whole Loan, Section 3.05(f); provided, however, if a
Prepayment Interest Shortfall occurs as a result of the Master Servicer's
allowing the related Borrower to deviate from the terms of the related loan
documents regarding principal prepayments (other than (v) on a Specially
Serviced Loan, (w) a payment of insurance proceeds or condemnation proceeds, (x)
a payment subsequent to a default under the related loan documents (provided
that the Master Servicer reasonably believes that acceptance of such payment is
consistent with the Servicing Standard and has obtained the consent of the
Special Servicer), (y) pursuant to applicable law or a court order, or (z) at
the request or with the consent of the Directing Certificateholder), then, for
purposes of calculating the Compensating Interest Payment for the subject
Collection Period, the amount in clause (ii) of this paragraph shall be the
aggregate of (A) all Master Servicing Fees for such Collection Period and (B)
all Prepayment Interest Excesses and, to the extent earned on principal
prepayments, Net Investment Earnings received by the Master Servicer during such
Collection Period; and provided, further, the rights of the Certificateholders
to offset the aggregate Prepayment Interest Shortfalls shall not be cumulative.
(f) Except under the same circumstances that it would be permitted
to waive a prepayment lockout provision in the subject Serviced Loan pursuant to
Section 3.20(a), neither the Master Servicer nor the Special Servicer shall
consent to any Mortgagor's prepaying its Loan, partially or in its entirety, if
the Mortgagor would be prohibited from doing so without such consent. In each
case subject to the Servicing Standard and applicable law and to the extent
permitted by the related loan documents, the Master Servicer and the Special
Servicer agree not to accept any Principal Prepayments with respect to any
Serviced Loan on a date other than the then applicable due date therefor except
that the Special Servicer shall be permitted to accept Principal Prepayments
with the consent of the Directing Certificateholder.
(g) The Master Servicer shall not exercise any discretionary right
it has with respect to any Serviced Loan pursuant to the related Mortgage Note
or Mortgage to apply any amounts maintained as an escrow or reserve to the
principal balance of such Serviced Loan except in the case of a default
thereunder.
(h) The Master Servicer shall send written notice to each Borrower
to the effect that, if applicable, the Master Servicer and/or the Trustee have
been appointed as the "designee" of the lender under any related Lock-Box
Agreement.
(i) In connection with each prepayment of principal received
hereunder, the Master Servicer shall calculate any applicable Prepayment Premium
under the terms of the related Mortgage Note. Promptly following its
determination thereof, the Master Servicer shall disclose to the Trustee its
calculation of any such Prepayment Premium.
(j) The Master Servicer shall, as to each Serviced Loan that is
secured by the interest of the related Mortgagor under a Ground Lease, promptly
(and in any event within 45 days) after the Closing Date notify the related
ground lessor of the transfer of such Serviced Loan to the Trust pursuant to
this Agreement and inform such ground lessor that any notices of default under
the related Ground Lease should thereafter be forwarded to the Master Servicer.
(k) Except as required under the loan documents, Mezzanine
Intercreditor Agreement or applicable law and subject to Section 3.21(f), the
Special Servicer shall not, without the consent of the Directing
Certificateholder, consent to the foreclosure of any Mezzanine Loan or to the
transfer of any Mezzanine Loan.
Section 3.20 Modifications, Waivers, Amendments and Consents.
(a) The Master Servicer (solely as to Performing Serviced Loans) and
the Special Servicer (as to Specially Serviced Loans) each may, consistent with
the Servicing Standard, agree to any modification, waiver or amendment of any
term of, forgive or defer the payment of interest (including, without
limitation, Default Interest and Excess Interest) on and principal of, forgive
late payment charges and Prepayment Premiums on, permit the release, addition or
substitution of collateral securing, and/or permit the release of the Mortgagor
on or any guarantor of any Serviced Loan it is required to service and
administer hereunder without the consent of the Trustee or any
Certificateholder, subject, however, to Section 3.02, Section 3.08, Section 3.21
and Section 3.28 and each of the following limitations, conditions and
restrictions:
(i) other than as provided in Sections 2.03(b), 3.02, 3.08 and
3.20(g), the Master Servicer shall not agree to any modification, waiver
or amendment of any term of, or take any of the other acts referenced in
this Section 3.20(a) with respect to, any Serviced Loan, that would affect
the amount or timing of any related payment of principal, interest or
other amount payable under such Serviced Loan or affect the security for
such Serviced Loan, unless the Master Servicer has obtained the consent of
the Special Servicer (it being understood and agreed that (A) the Master
Servicer shall promptly provide the Special Servicer with notice of any
Mortgagor's request for such modification, waiver or amendment, the Master
Servicer's recommendations and analysis, and with all information
reasonably available to the Master Servicer that the Special Servicer may
reasonably request to withhold or grant any such consent, each of which
shall be provided reasonably promptly in accordance with the Servicing
Standard, (B) the Special Servicer shall decide whether to withhold or
grant such consent in accordance with the Servicing Standard and (C) if
any such request has not been expressly responded to within ten Business
Days (subject to any extensions of applicable time periods required if the
Special Servicer is required by this Agreement to seek the consent of
third parties) of the Special Servicer's receipt from the Master Servicer
of the Master Servicer's recommendations and analysis and all information
reasonably requested thereby and reasonably available to the Master
Servicer, as such time period may be extended if the Special Servicer is
required to seek the consent of the Directing Certificateholder, the
related Companion Loan Holder or any Controlling Holder, as applicable,
related to a Whole Loan, any mezzanine lender, or the Rating Agencies, to
make an informed decision (or, if the Special Servicer did not request any
information, within ten Business Days from such notice), such consent
shall be deemed to have been granted);
(ii) Subject to the restrictions on extensions in Section
3.20(a)(iv), the Master Servicer may (with the consent of the Directing
Certificateholder, subject, however, to Section 3.21(f)) extend the
maturity date of any Mortgage Loan (including any Whole Loan, if
applicable for up to six months (but not more than two such extensions by
the Master Servicer shall occur);
(iii) other than as provided in Sections 3.02 and 3.08, the Special
Servicer shall not agree to (or, in the case of a Performing Serviced
Loan, consent to the Master Servicer's agreeing to) any modification,
waiver or amendment of any term of, or take (or, in the case of a
Performing Serviced Loan, consent to the Master Servicer's taking) any of
the other acts referenced in this Section 3.20(a) with respect to, any
Serviced Loan that would affect the amount or timing of any related
payment of principal, interest or other amount payable thereunder or, in
the reasonable, good faith judgment of the Special Servicer, would add to,
release, substitute for, or otherwise alter a material amount of the
security for such Serviced Loan, unless a material default on such
Serviced Loan has occurred or, in the reasonable, good faith judgment of
the Special Servicer, a default in respect of payment on such Serviced
Loan is reasonably foreseeable, and such modification, waiver, amendment
or other action is reasonably likely to produce a greater recovery to the
Certificateholders, or if a Serviced Whole Loan is affected, to the
Certificateholders and the related Companion Loan Holder (as a collective
whole and, in the case of a Serviced Whole Loan that is an A/B Whole Loan,
taking into account the subordination of the related A/B Companion Loan)
on a net present value basis than would liquidation;
(iv) the Special Servicer shall not extend (or, in the case of a
Performing Serviced Loan, consent to the Master Servicer's extending) the
date on which any Balloon Payment is scheduled to be due on any Serviced
Loan to a date beyond the earliest of (A) two years prior to the Rated
Final Distribution Date (or in the case of an ARD Loan, five years prior
to the Rated Final Distribution Date), and (B) if such Serviced Loan is
secured by a Mortgage solely or primarily on the related Mortgagor's
leasehold interest in the related Mortgaged Property, 20 years (or, to the
extent consistent with the Servicing Standard, giving due consideration to
the remaining term of the Ground Lease, ten years) prior to the end of the
then current term of the related Ground Lease (plus any unilateral options
to extend);
(v) neither the Master Servicer nor the Special Servicer shall make
or permit any modification, waiver or amendment of any term of, or take
any of the other acts referenced in this Section 3.20(a) with respect to,
any Serviced Loan that would result in an Adverse REMIC Event with respect
to either of REMIC I or REMIC II;
(vi) subject to applicable law, the related loan documents and the
Servicing Standard, neither the Master Servicer nor the Special Servicer
shall permit any modification, waiver or amendment of any term of any
Serviced Loan unless all related fees and expenses are paid by the related
Mortgagor;
(vii) the Special Servicer shall not permit (or, in the case of a
Performing Serviced Loan, consent to the Master Servicer's permitting) any
Mortgagor to add or substitute any real estate collateral for its Serviced
Loan unless the Special Servicer shall have first determined in its
reasonable, good faith judgment, based upon a Phase I Environmental
Assessment (and any additional environmental testing that the Special
Servicer deems necessary and prudent) conducted by an Independent Person
who regularly conducts Phase I Environmental Assessments, at the expense
of the Mortgagor, that such additional or substitute collateral is in
compliance with applicable environmental laws and regulations and that
there are no circumstances or conditions present with respect to such new
collateral relating to the use, management or disposal of any Hazardous
Materials for which investigation, testing, monitoring, containment,
clean-up or remediation would be required under any then applicable
environmental laws or regulations; and
(viii) the Special Servicer shall not permit the release, including
in connection with a substitution contemplated by clause (vii) of this
Section 3.20(a), of any collateral securing an outstanding Serviced Loan,
except as provided in Section 3.09(d) or Section 3.26, or except where a
Serviced Loan (or, in the case of a Cross-Collateralized Set, where such
entire Cross-Collateralized Set) is satisfied, or except in the case of a
release where (A) either (1) the use of the collateral to be released will
not, in the good faith and reasonable judgment of the Special Servicer,
materially and adversely affect the net operating income being generated
by or the use of the related Mortgaged Property, or (2) there is a
corresponding principal pay down of such Serviced Loan in an amount at
least equal to the appraised value of the collateral to be released (or
substitute collateral with an appraised value at least equal to that of
the collateral to be released, is delivered), (B) the remaining Mortgaged
Property (together with any substitute collateral) is, in the Special
Servicer's good faith and reasonable judgment, adequate security for the
remaining Serviced Loan and (C) such release would not, in and of itself,
result in an Adverse Rating Event with respect to any Class of Rated
Certificates or Companion Loan Securities (as confirmed in writing to the
Trustee by each Rating Agency);
provided that the limitations, conditions and restrictions set forth in clauses
(i) through (vii) of this Section 3.20(a) shall not apply to any act or event
(including, without limitation, a release, substitution or addition of
collateral) in respect of any Serviced Loan that either occurs automatically, or
results from the exercise of a unilateral option by the related Mortgagor within
the meaning of Treasury Regulations Section 1.1001-3(c)(2)(iii), in any event
under the terms of such Serviced Loan in effect on the Closing Date (or, in the
case of a Replacement Mortgage Loan, on the related date of substitution); and
provided, further, notwithstanding clauses (i) through (vii) of this Section
3.20(a), neither the Master Servicer nor the Special Servicer shall be required
to oppose the confirmation of a plan in any bankruptcy or similar proceeding
involving a Mortgagor if, in its reasonable, good faith judgment, such
opposition would not ultimately prevent the confirmation of such plan or one
substantially similar; and provided, further, notwithstanding clause (vii) of
this Section 3.20(a), neither the Master Servicer nor the Special Servicer shall
be required to obtain any confirmation of the Certificate Companion Loan
Securities ratings from the Rating Agencies to grant, or to subordinate the lien
of Loans to, easements, rights-of-way or similar agreements that do not
materially affect the use or value of a Mortgaged Property or the Mortgagor's
ability to make any payments with respect to the related Loan.
Notwithstanding anything to the contrary herein, the Special
Servicer (with the consent of the Directing Certificateholder, subject to the
limitations of Section 3.21(f)) may, consistent with the Servicing Standard,
agree to any waiver, modification or amendment of a Mortgage Loan that is not in
default or as to which default is not reasonably foreseeable if it consults with
counsel (and if it is determined by the Special Servicer to be necessary,
provides the Trustee with an Opinion of Counsel (which shall be at the expense
of the related Mortgagor or such other Person requesting such modification or,
if such expense cannot be collected from the related Mortgagor or such other
Person, to be paid by the Master Servicer as a Servicing Advance)) to obtain
advice regarding whether the contemplated waiver, modification or amendment (i)
will not be a "significant modification" of the Mortgage Loan within the meaning
of Treasury Regulations Section 1.860G-2(b), and (ii) will not cause (x) REMIC I
or REMIC II to fail to qualify as a REMIC for purposes of the Code, or (ii)
REMIC I or REMIC II to be subject to any tax under the REMIC Provisions.
(b) Neither the Master Servicer nor the Special Servicer shall have
any liability to the Trust, the Certificateholders and in the case of a Whole
Loan, the related Companion Loan Holder or any other Person if its analysis and
determination that the modification, waiver, amendment or other action
contemplated by Section 3.20(a) is reasonably likely to produce a greater
recovery to Certificateholders or if a Serviced Whole Loan is affected, to
Certificateholders and the related Companion Loan Holder (as a collective whole
and, in the case of a Serviced Whole Loan that is an A/B Whole Loan, taking into
account the subordination of the related A/B Companion Loan) on a net present
value basis than would liquidation, should prove to be wrong or incorrect, so
long as the analysis and determination were made on a reasonable basis by the
Special Servicer or the Master Servicer, as applicable, consistent with the
Servicing Standard. Each such determination shall be evidenced by an Officer's
Certificate to such effect to be delivered by the Special Servicer to the
Trustee, the Directing Certificateholder and the related Companion Loan Holder
(if a Whole Loan is involved). The Special Servicer shall include with any such
Officer's Certificate the supporting documentation forming the basis for its
conclusion.
(c) Any payment of interest that is deferred pursuant to Section
3.20(a) shall not, for purposes hereof, including, without limitation,
calculating monthly distributions to Certificateholders, be added to the unpaid
principal balance or Stated Principal Balance of the related Serviced Loan,
notwithstanding that the terms of such Serviced Loan so permit or that such
interest may actually be capitalized.
(d) The Master Servicer (as to Performing Serviced Loans) and the
Special Servicer (as to Specially Serviced Loans) each may, as a condition to
its granting any request by a Mortgagor for consent, modification, waiver or
indulgence or any other matter or thing, the granting of which is within the
Master Servicer's or Special Servicer's, as the case may be, discretion pursuant
to the terms of the instruments evidencing or securing the related Serviced Loan
and is permitted by the terms of this Agreement, require that such Mortgagor pay
to it, as additional servicing compensation, a reasonable fee relating to such
consent, modification, waiver or indulgence (not to exceed 1.0% of the unpaid
principal balance of the related Serviced Loan) for the additional services
performed in connection with such request, together with any related costs and
expenses incurred by it; provided that the charging of such fees would not
otherwise constitute a "significant modification" of the Serviced Loan pursuant
to Treasury Regulations Section 1.860G-2(b). All such fees collected by the
Master Servicer and/or the Special Servicer shall be allocable between such
parties, as Additional Master Servicing Compensation and Additional Special
Servicing Compensation, respectively, as provided in Section 3.11.
(e) All modifications, waivers, amendments and other actions entered
into or taken in respect of the Serviced Loans pursuant to the preceding
subsections of this Section 3.20 shall be in writing. Each of the Master
Servicer and the Special Servicer shall notify the other such party, the Trustee
and the Directing Certificateholder and the related Companion Loan Holder (if a
Whole Loan is involved), in writing, of any modification, waiver, amendment or
other action entered into or taken in respect of any Serviced Loan pursuant to
this Section 3.20 and the date thereof, and shall deliver to the Trustee or the
related Custodian for deposit into the related Mortgage File (with a copy to the
other such party), an original counterpart of the agreement relating to such
modification, waiver, amendment or other action, promptly (and in any event
within ten Business Days) following the execution thereof. In addition,
following the execution of any modification, waiver or amendment agreed to by
the Special Servicer pursuant to Section 3.20(a), the Special Servicer shall
deliver to the Master Servicer and the Trustee an Officer's Certificate setting
forth in reasonable detail the basis of the determination made by it pursuant to
clause (ii) of Section 3.20(a).
(f) With respect to any ARD Loan after its Anticipated Repayment
Date, the Master Servicer shall be permitted to waive all or any accrued Excess
Interest if, prior to the related maturity date, the related Mortgagor has
requested the right to prepay the Loan in full together with all payments
required by the Serviced Loan in connection with such prepayment except for all
or a portion of accrued Excess Interest; provided that the Master Servicer's
determination to waive the right to such accrued Excess Interest is reasonably
likely to produce a greater payment to Certificateholders on a net present value
basis than a refusal to waive the right to such Excess Interest. Any such waiver
shall not be effective until such payment is tendered. The Master Servicer shall
have no liability to the Trust, the Certificateholders or any other person so
long as such determination is based on such criteria. Notwithstanding anything
contained in this Agreement to the foregoing, the Master Servicer shall be
required to seek the consent of the Directing Certificateholder and provide to
the Directing Certificateholder any information that the Directing
Certificateholder may reasonably request in order to grant or deny its consent,
provided that such information is in the possession of the Master Servicer,
prior to waiving any Excess Interest. The Directing Certificateholder's consent
to a waiver shall be deemed granted if the Directing Certificateholder fails to
respond to such request within ten Business Days of its receipt of such request.
Except as permitted in Section 3.20(a), the Special Servicer shall have no right
to waive the payment of Excess Interest.
(g) The Master Servicer shall not be required to seek the consent of
the Special Servicer or any Certificateholder or obtain any confirmation of the
Certificate Companion Loan Securities ratings from the Rating Agencies (unless
otherwise set forth in the related Intercreditor Agreement with respect to a
Whole Loan) to approve the following modifications, waivers or amendments of the
Loans: (i) waivers of minor covenant defaults (other than financial covenants),
including late financial statements; (ii) releases of (A) non-material parcels
of a Mortgaged Property, in connection with a pending or threatened
condemnation; (B) parcels of a Mortgaged Property not given any value in the
underwriting of the Loan; or (C) similar non-material parcels of a Mortgaged
Property; (iii) grant, or subordinate the lien of Loans to, easements, rights of
way or similar agreements that do not materially affect the use or value of a
Mortgaged Property or the Mortgagor's ability to make any payments with respect
to the related Loan; and (iv) other routine leasing approvals, including the
granting of subordination, non-disturbance and attornment agreements, with
respect to leases (A) where the related lease constitutes less than the greater
of (x) 20% of the total square footage of the related Mortgaged Property and (y)
20,000 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;
provided that (w) any such modification, waiver or amendment would not in any
way affect a payment term of the Certificates, (x) any such modification, waiver
or amendment would not constitute a "significant modification" of such Loan
pursuant to Treasury Regulations Section 1.860G-2(b) and would not otherwise
constitute an Adverse REMIC Event or Adverse Grantor Trust Event (y) agreeing to
any such modification, waiver or amendment would be consistent with the
Servicing Standard, and (z) agreeing to any such modification, waiver or
amendment shall not violate the terms, provisions or limitations of this
Agreement or any other document contemplated hereby.
The Master Servicer shall submit any non-material modification,
waivers or amendment not provided for in clause (i) through (iv) of Section
3.20(g) which are necessary to correct a scrivener's error on the terms of any
Mortgage Loan which is patent on its face or cure any ambiguity caused by such a
scrivener's error for review and approval by the Special Servicer. The Special
Servicer shall have five Business Days from receipt thereof to approve or
respond and its failure to respond within such time period shall constitute
deemed approval. The Special Servicer shall not be entitled to a fee with
respect to the review of the items discussed in the first two sentences of this
paragraph.
For the avoidance of doubt, and without limiting the generality of
the foregoing, any request for the disbursement of earnouts or holdback amounts
with respect to any Mortgage Loan set forth on Schedule XIV attached hereto
received by the Master Servicer shall be submitted to the Special Servicer for
approval (which approval shall be deemed given if the request is not denied by
the Special Servicer in writing to the Master Servicer within ten Business Days
of the Special Servicer's receipt of such request). For purposes of this
Agreement, "disbursement of earnouts or holdback amounts" shall mean the
disbursement or funding to a Mortgagor of previously unfunded, escrowed or
otherwise reserved portions of the loan proceeds of the related Mortgage Loan
until certain conditions precedent thereto relating to the satisfaction of
performance related criteria (i.e., project reserve thresholds, lease-up
requirements, sales requirements, etc.) as set forth in the applicable Mortgage
Loan documents, have been satisfied.
The Special Servicer, with respect to any request that the Master
Servicer is required to seek the approval or consent thereof under this Section
3.20(g), shall respond to the Master Servicer in writing (which may be via
e-mail or facsimile) of its decision to grant or deny the Master Servicer's
request for approval and consent within ten Business Days of its receipt of such
request and all information reasonably requested by the Special Servicer If the
Special Servicer so fails to respond to the Master Servicer within the time
period referenced in the immediately preceding sentence, such approval and
consent shall be deemed granted.
(h) In connection with granting an extension of the maturity date of
any Loan (other than any Non-Serviced Loan) in accordance with Section 3.20(a),
the Special Servicer, in the case of a Specially Serviced Loan, and the Master
Servicer, in the case of a Performing Serviced Loan, shall each cause the
related Mortgagor to agree, if it has not already done so pursuant to the
existing loan documents, to thereafter deliver to the Special Servicer, the
Trustee, the Directing Certificateholder and the related Companion Loan Holder
(if a Whole Loan is involved) audited operating statements on a quarterly basis
with respect to the related Mortgaged Property, provided that the Special
Servicer or the Master Servicer, as the case may be, may, in its sole
discretion, waive the requirement that such statements be audited.
(i) If the Master Servicer or the Special Servicer collects a
modification fee or a modification application fee in connection with a
modification or proposed modification of a Serviced Loan, then the Master
Servicer or the Special Servicer, as applicable, will apply that fee to cover
the costs and expenses associated with that modification or proposed
modification that are not otherwise paid by the related Mortgagor and that would
otherwise be payable or reimbursable out of the Trust Fund, including any Rating
Agency fees and expenses. Any remaining portion of such modification fee (such
remaining portion, a "Net Modification Fee") or of such modification application
fee (such remaining portion, a "Net Modification Application Fee") will be
applied as additional compensation to the Master Servicer or the Special
Servicer in accordance with Section 3.11.
Section 3.21 Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping; Asset Status Report; Directing
Certificateholder.
(a) Upon determining that a Servicing Transfer Event has occurred
with respect to any Serviced Loan, the Master Servicer shall immediately give
notice thereof to the Directing Certificateholder and the related Companion Loan
Holder (if a Whole Loan is involved), and deliver the related Servicing File to
the Special Servicer and shall use its best efforts to provide the Special
Servicer with all information, documents (or copies thereof) and records
(including records stored electronically on computer tapes, magnetic discs and
the like) relating to the Serviced Loan and reasonably requested by the Special
Servicer to enable it to assume its functions hereunder with respect thereto
without acting through a Sub-Servicer. Notwithstanding anything in Section
2.01(b) or any other provision of this Agreement to the contrary, the copying
and delivery of such documents, instruments, items, records and information
shall not be at the expense of the Special Servicer. At its option, although its
Sub-Servicing Agreement is temporarily suspended, the related Sub-Servicer,
without any compensation therefor, may retain Loans on its computer systems
while such Loans are Specially Serviced Loans, provided that no Sub-Servicer
shall take any action with respect thereto so long as such Loan is a Specially
Serviced Loan and provided that the Master Servicer shall assume all the Master
Servicing duties with respect to that Loan as provided in the second succeeding
paragraph. The Master Servicer shall use its best efforts to comply with the
third preceding sentence within five Business Days of the occurrence of each
related Servicing Transfer Event. The Master Servicer shall deliver to each
Holder of a Non-Registered Certificate (except a Class V, Class R-I or Class
R-II Certificate) that shall have requested a copy of any such notice a copy of
the notice of such Servicing Transfer Event provided by the Master Servicer to
the Special Servicer pursuant to this Section 3.21. No later than ten Business
Days before the Master Servicer is required to deliver a copy of the related
Servicing File to the Special Servicer, it shall review the Servicing File and
request from the Trustee any material documents that it is aware are missing
from the Servicing File. If the related Sub-Servicer elects not to retain
Specially Serviced Loans on its computer systems, then such Sub-Servicer shall
return all Mortgage Files to the Master Servicer.
Upon determining that a Specially Serviced Loan has become a
Corrected Serviced Loan, the Special Servicer shall promptly give notice thereof
to the Master Servicer and to the Directing Certificateholder and the related
Companion Loan Holder (if a Whole Loan is involved), and return the related
Servicing File to the Master Servicer within five Business Days and upon giving
such notice and returning such Servicing File, to the Master Servicer, the
Special Servicer's obligation to service such Loan, and the Special Servicer's
right to receive the Special Servicing Fee with respect to such Loan, shall
terminate, and the obligations of the Master Servicer to service and administer
such Loan shall resume.
Notwithstanding other provisions in this Agreement to the contrary,
the Master Servicer shall remain responsible for the accounting, data
collection, reporting and other basic Master Servicer administrative functions
with respect to the Specially Serviced Loans, provided that the Master Servicer
shall establish reasonable procedures as to the application of Special Servicer
receipts and tendered payments, and the Special Servicer shall have the
exclusive responsibility for and authority over all contacts (including
collection, which information shall be provided by the Master Servicer) with and
notices to Mortgagors and similar matters relating to each Specially Serviced
Loan and the related Mortgaged Property.
Also notwithstanding anything herein to the contrary, in connection
with the transfer to the Special Servicer of the servicing, subject to Section
2.03, of a Cross-Collateralized Mortgage Loan as a result of a Servicing
Transfer Event or the reassumption of servicing responsibilities by the Master
Servicer with respect to any such Serviced Loan upon its becoming a Corrected
Serviced Loan, the Master Servicer and the Special Servicer shall each transfer
to the other, as and when applicable, the servicing of all other
Cross-Collateralized Mortgage Loans constituting part of the same
Cross-Collateralized Set; provided that no Cross-Collateralized Mortgage Loan
may become a Corrected Serviced Loan at any time that a continuing Servicing
Transfer Event exists with respect to another Cross-Collateralized Mortgage Loan
in the same Cross-Collateralized Set.
(b) In servicing any Specially Serviced Loans, the Special Servicer
shall provide to the Trustee the originals, of documents contemplated by the
definition of "Mortgage File" and generated while such Serviced Loan is a
Specially Serviced Loan, for inclusion in the related Mortgage File (with a copy
of each such original to the Master Servicer), and provide to the Master
Servicer copies of any additional related Serviced Loan information, including
correspondence with the related Mortgagor generated while such Serviced Loan is
a Specially Serviced Loan.
(c) Notwithstanding anything in this Agreement to the contrary, in
the event that the Master Servicer and the Special Servicer are the same Person,
all notices, certificates, information, consents and documents required to be
given or delivered by the Master Servicer to the Special Servicer or vice versa
shall be deemed to be given or delivered, as the case may be, without the
necessity of any action on such Person's part.
(d) No later than 45 days after the date the servicing of a Serviced
Loan is transferred from the Master Servicer to the Special Servicer pursuant to
the terms of this Agreement, the Special Servicer shall deliver to each Rating
Agency, the Master Servicer, the Trustee, the related Companion Loan Holder (if
a Whole Loan is involved), and the Directing Certificateholder a report (the
"Asset Status Report") with respect to such Serviced Loan and the related
Mortgaged Property. Such Asset Status Report shall set forth the following
information to the extent reasonably determinable:
(i) a summary of the status of such Specially Serviced Loan and any
negotiations with the related Mortgagor;
(ii) a discussion of the legal and environmental considerations
reasonably known to the Special Servicer (including without limitation by
reason of any Phase I Environmental Assessment and any additional
environmental testing contemplated by Section 3.09), consistent with the
Servicing Standard, that are applicable to the exercise of remedies set
forth herein and to the enforcement of any related guaranties or other
collateral for the related Serviced Loan and whether outside legal counsel
has been retained;
(iii) the most current rent roll and income or operating statement
available for the related Mortgaged Property;
(iv) the Special Servicer's recommendations on how such Specially
Serviced Loan might be returned to performing status and returned to the
Master Servicer for regular servicing or otherwise realized upon;
(v) the Appraised Value of the Mortgaged Property together with the
assumptions used in the calculation thereof (which the Special Servicer
may satisfy by providing a copy of the last obtained Appraisal); and
(vi) such other information as the Special Servicer deems relevant
in light of the Servicing Standard.
If within ten Business Days of receiving an Asset Status Report, the
Directing Certificateholder (except with respect to any Whole Loan) or the
related Controlling Holder (if a Whole Loan is involved), does not disapprove
such Asset Status Report in writing, the Special Servicer shall implement the
recommended action as outlined in such Asset Status Report; provided, however,
the Special Servicer may not take any action that is contrary to applicable law,
the Servicing Standard or the terms of the applicable loan documents; provided,
further if the Special Servicer determines that the failure to take any action
set forth in such Asset Status Report would violate the Servicing Standard, the
Special Servicer may implement the recommended action outlined in such Asset
Status Report without waiting for the Directing Certificateholder's or the
related Controlling Holder (if a Whole Loan is involved) response. If the
Directing Certificateholder or the related Controlling Holder (if a Whole Loan
is involved) disapproves such Asset Status Report, the Special Servicer will
revise such Asset Status Report and deliver to the Directing Certificateholder
or the related Controlling Holder (if an A/B Whole Loan is involved), the Rating
Agencies, the Trustee and the Master Servicer a new Asset Status Report as soon
as practicable, but no later than 30 days after such disapproval. The Special
Servicer shall revise such Asset Status Report as described above in this
Section 3.21(d) until the earlier of (x) the delivery by the Directing
Certificateholder or the related Controlling Holder (if a Whole Loan is
involved), as applicable, of an affirmative approval in writing of such revised
Asset Status Report, (y) the failure of the Directing Certificateholder or the
related Controlling Holder (if a Whole Loan is involved), as applicable, to
disapprove such revised Asset Status Report in writing within ten Business Days
of its receipt thereof; or (z) the passage of 90 days from the date of
preparation of the initial version of the Asset Status Report. Following the
earliest of such events, and subject to the terms of Section 3.20, the Special
Servicer shall implement the recommended action as outlined in the most recent
version of such Asset Status Report (provided that the Special Servicer shall
not take any action that is contrary to applicable law or the terms of the
applicable loan documents or that violates the Servicing Standard or fail to
take any action, if the failure to take such action would violate the Servicing
Standard). The Special Servicer may, from time to time, modify any Asset Status
Report it has previously delivered and implement the new action in such revised
report so long as such revised report has been prepared, reviewed and either
approved or not rejected as provided above. For the avoidance of doubt, any
action to be taken (or not taken) by the Special Servicer with respect to an
Asset Status Report must be in all respects consistent with the Servicing
Standard and applicable law. The Special Servicer shall have the authority to
meet with the Mortgagor for any Specially Serviced Loan and take such actions
consistent with the Servicing Standard and the related Asset Status Report. The
Special Servicer shall not take any action inconsistent with the related Asset
Status Report, unless such action would be required to act in accordance with
the Servicing Standard.
(e) The Special Servicer or the Master Servicer, as applicable,
shall provide the Directing Certificateholder and the related Controlling
Holder, as applicable, with not less than ten Business Days' prior notice
(except as provided in Section 3.08(a)) of any Special Action (as described
below) that the Special Servicer or the Master Servicer, as applicable, proposes
to take and, in the case of the Special Action described in clause (vi) in this
Section 3.21(e), the Special Servicer shall also contemporaneously notify the
Master Servicer; provided, however, if a shorter period of notice is necessary
to avoid the occurrence of an Adverse REMIC Event or a violation of Section
3.21(f), then the required period of notice shall be such shorter period.
The Directing Certificateholder (except with respect to any A/B
Whole Loan) or the related Controlling Holder (if an A/B Whole Loan is
involved), as applicable, shall be entitled to advise the Special Servicer with
respect to any Special Action, and notwithstanding anything to the contrary
contained herein, the Special Servicer shall not take any Special Action or
consent to the taking of any Special Action if the Directing Certificateholder
(except with respect to any A/B Whole Loan) or the related Controlling Holder
(if an A/B Whole Loan is involved), as applicable, has objected thereto by the
close of business on the tenth Business Day following its receipt of notice
thereof, or if a shorter period was necessitated in accordance with the
preceding sentence, by the close of business on the date on which such shorter
period expires (it being understood that the failure of the Directing
Certificateholder (except with respect to any A/B Whole Loan) or the related
Controlling Holder (if an A/B Whole Loan is involved), as applicable, to respond
in the time frame set forth in the Approval Provisions shall be deemed to
constitute such party's approval of such action); provided, however, (i) the
ability of the Directing Certificateholder or the related Controlling Holder (if
an A/B Whole Loan is involved), as applicable, to so advise or object shall in
all events be subject to Section 3.21(f) and shall not violate the provisions of
the Mezzanine Intercreditor Agreement (with respect to any Mortgage Loan with a
related Mezzanine Loan), (ii) the Master Servicer or the Special Servicer, as
applicable, shall not follow any such advice or objection that would result in a
violation of this Agreement, including Section 3.21(f), the loan documents, any
Intercreditor Agreement or applicable laws or otherwise result in an Adverse
REMIC Event or violate the provisions of the Mezzanine Intercreditor Agreement
(with respect to any Mortgage Loan with a related Mezzanine Loan) and (iii) if
(a) the Directing Certificateholder (except with respect to any A/B Whole Loan)
or the related Controlling Holder (if an A/B Whole Loan is involved), as
applicable, (b) the Special Servicer or Master Servicer, as applicable, together
cannot agree within 10 Business Days upon a course of action with respect to any
Special Action, then the Special Servicer or Master Servicer, as applicable,
shall implement its proposed course of action and (c) if the Master Servicer or
the Special Servicer determines that immediate action is necessary in accordance
with the Servicing Standard, it may take such action prior to the expiration of
the ten Business Day period. Subject to the foregoing, in connection with the
implementation of any Special Action or the extension of the maturity date of a
Serviced Loan, the Master Servicer or Special Servicer shall comply with the
Approval Provisions, as applicable. For purposes hereof, "Special Action" means
each of the following actions:
(i) any proposed or actual foreclosure upon or comparable conversion
(which may include acquisitions of an REO Property) of the ownership of
properties securing such of the Specially Serviced Loans as come into and
continue in default;
(ii) any modification, extension, amendment or waiver of a monetary
term (including the timing of payments) or any material non-monetary term
of any Mortgage Loan or Whole Loan (excluding the waiver of any
"due-on-sale" or "due-on-encumbrance" clause as set forth in clause (vi);
(iii) any proposed or actual sale of a Defaulted Serviced Loan or
REO Property (other than in connection with the termination of the Trust
Fund or pursuant to Section 3.18);
(iv) any determination to bring an REO Property into compliance with
applicable environmental laws or to otherwise address Hazardous Materials
located at an REO Property;
(v) any acceptance of substitute or additional collateral for a Loan
unless the lender is required to accept such collateral by the underlying
loan documents and any release of the real estate collateral securing the
Loan (except as permitted by clause (ii) of Section 3.20(g));
(vi) any waiver of a "due-on-sale" clause (except as set forth in
Section 3.08(a)) or "due-on-encumbrance" clause;
(vii) any acceptance or approval of acceptance or consent to
acceptance of an assumption agreement releasing a borrower from liability
under a Serviced Loan (except as set forth in Section 3.08(a));
(viii) any acceptance of a discounted payoff of a Mortgage Loan;
(ix) any release of earnout reserve funds (other than as expressly
required, with no lender discretion and/or is automatic, under the related
loan documents);
(x) the release of any letters of credit (other than as expressly
required, with no lender discretion and/or is automatic, under the related
loan documents);
(xi) any approval of a material lease (in excess of 20% of the
leasable space) (other than as expressly required, with no lender
discretion and/or is automatic, under the related loan documents); or
(xii) any change in property manager or franchise (other than as
expressly required, with no lender discretion and/or is automatic, under
the related loan documents).
(f) Notwithstanding anything contained in this Agreement to the
contrary, (i) no objection, failure to approve or direction of the Directing
Certificateholder or the related Controlling Holder (if an A/B Whole Loan is
involved), as applicable, shall (A) require or cause the Master Servicer or the
Special Servicer, as applicable, to violate the terms of any Loan then serviced
by it, applicable law or any provision of this Agreement, including the Master
Servicer's obligation or the Special Servicer's obligation to act in accordance
with the Servicing Standard and to maintain the REMIC status of each of REMIC I
and REMIC II, or (B) result in the imposition of a "prohibited transaction" or
"prohibited contribution" tax under the REMIC Provisions, or (C) expose the
Master Servicer, the Special Servicer, the Depositor, the Trust Fund, the
Trustee or their officers, directors, employees or agents to any claim, suit or
liability, or (D) materially expand the scope of the Special Servicer's or the
Master Servicer's responsibilities under this Agreement (the "Prohibited
Actions"), and (ii) in no event shall the Master Servicer or the Special
Servicer take any action or refrain from taking any action if the taking of such
action or the refraining from taking of such action would violate the Servicing
Standard or the REMIC Provisions. The Master Servicer or Special Servicer, as
applicable, shall disregard any such direction, failure to approve or objection.
The Directing Certificateholder shall have no liability to the
Certificateholders (other than the holders of the Controlling Class) and the
related Controlling Holder (if a Whole Loan is involved) shall have no liability
to the Certificateholders (including the holders of the Controlling Class) for
any action taken, or for refraining from the taking of any action, pursuant to
this Agreement, or for errors in judgment; provided, however, the Directing
Certificateholder or the related Controlling Holder (if a Whole Loan is
involved), as applicable, will not be protected against any liability to any
Holder of the Controlling Class would otherwise be imposed by reason of willful
misfeasance, bad faith or negligence in the performance of duties or by reason
of reckless disregard of obligations or duties. By its acceptance of a
Certificate, each Certificateholder confirms its understanding that the
Directing Certificateholder or the related Controlling Holder (if a Whole Loan
is involved), as applicable, may take actions that favor the interests of one or
more Classes of the Certificates over other Classes of the Certificates, and
that the Directing Certificateholder or the related Controlling Holder (if a
Whole Loan is involved), as applicable, may have special relationships and
interests that conflict with those of Holders of some Classes of the
Certificates, that the Directing Certificateholder or the related Controlling
Holder (if a Whole Loan is involved), as applicable, may act solely in the
interests of the Holders of the Controlling Class, that none of the Directing
Certificateholder or any Controlling Holder (if a Whole Loan is involved), as
applicable, has any duties to the Holders of any Class of Certificates other
than the Controlling Class, that none of the Directing Certificateholder or any
Controlling Holder (if a Whole Loan is involved), as applicable, shall be deemed
to have been negligent or reckless, or to have acted in bad faith or engaged in
willful misfeasance, by reason of its having acted solely in the interests of
the holders of the Controlling Class that none of the Directing
Certificateholder or any Controlling Holder (if a Whole Loan is involved), as
applicable, shall have any liability whatsoever for having so acted, and no
Certificateholder may take any action whatsoever against the Directing
Certificateholder or any Controlling Holder (if a Whole Loan is involved), as
applicable, or any director, officer, employee, agent or principal thereof for
having so acted.
(g) With respect to each Whole Loan, notwithstanding anything to the
contrary contained herein (but subject to Section 3.21(f) and the related
Intercreditor Agreement), (i) the Special Servicer shall be required to consult
with the related Controlling Holder upon the occurrence of any event of default
under the related Whole Loan, to consider alternative actions recommended by
such Controlling Holder and to consult with such Controlling Holder with respect
to determinations made pursuant to Section 3.09 or Section 3.18 and (ii) at any
time (whether or not any event of default under the related Whole Loan has
occurred) the Master Servicer and the Special Servicer shall be required to
consult with such Controlling Holder to the extent that the related loan
documents grant the lender the right to approve budgets for the related
Mortgaged Property, prior to approving any such budget.
(h) In connection with any proposed Special Action, the Special
Servicer shall prepare a summary of such proposed Special Action and an analysis
of whether or not such Special Action is reasonably likely to produce a greater
recovery on a present value basis than not taking such action or making such
determination and shall provide to the Directing Certificateholder or any
Controlling Holder, as applicable, such summary and such information as is in
its possession or control and is reasonably requested by the Directing
Certificateholder or any Controlling Holder, as applicable, as may be necessary
in the reasonable judgment of the Directing Certificateholder or any Controlling
Holder, as applicable, in order to make a determination with respect to such
Special Action.
The Master Servicer or Special Servicer shall provide to the
Directing Certificateholder by hard copy or by electronic means concurrently
with the delivery thereof to the related Borrower, copies of any notice of an
event of default under the related loan documents and any other notices sent to
such Borrower with respect to foreclosure or other exercise of remedies or
enforcement, modification or waiver with respect to the related Mortgage Loan or
the related Mortgaged Property.
The Master Servicer or the Special Servicer shall also provide to
the Directing Certificateholder or any Controlling Holder, as applicable, by
hard copy, electronic means or by other means agreed to by the Directing
Certificateholder or any Controlling Holder, as applicable, and the Master
Servicer or the Special Servicer (A) within 30 days of receipt thereof, copies
of any financial statements, certificates, correspondence, notices, bills or
reports with respect to the related Borrower or Mortgaged Property that were
delivered pursuant to, or to which the mortgagee or lender would be entitled to
under, the terms of the related loan documents, (B) within 30 days following the
receipt thereof by the Master Servicer or the Special Servicer monthly operating
statements and rent rolls for the related Mortgaged Property and (C) within 30
days following the receipt thereof by the Master Servicer or the Special
Servicer annual operating statements and rent rolls for the related Mortgaged
Property.
The expense of providing information (except for any notice of an
event of default) and summaries pursuant to this Section 3.21(h) shall be an
expense of the Directing Certificateholder or any Controlling Holder, as
applicable, and shall not be an expense of the Trust Fund.
Section 3.22 Sub-Servicing Agreements.
(a) The Master Servicer and the Special Servicer (in the case of the
Special Servicer, with the consent of the Directing Certificateholder) may each
enter into Sub-Servicing Agreements to provide for the performance by third
parties of any or all of its obligations hereunder, provided that, in each case,
the Sub-Servicing Agreement: (i) insofar as it affects the Trust and the related
Companion Loan Holder (if a Whole Loan is involved), is consistent with this
Agreement in all material respects; (ii) expressly or effectively provides that
if the Master Servicer or Special Servicer, as the case may be, shall for any
reason no longer act in such capacity hereunder (including, without limitation,
by reason of an Event of Default), any successor to the Master Servicer or the
Special Servicer, as the case may be, hereunder (including the Trustee if the
Trustee has become such successor pursuant to Section 7.02) may thereupon either
assume all of the rights and, except to the extent they arose prior to the date
of assumption, obligations of the Master Servicer or Special Servicer, as the
case may be, under such agreement or, except with respect to those Sub-Servicing
Agreements listed on Schedule II and subject to the provisions of Section
3.22(d), terminate such rights and obligations; (iii) in the case of a
Sub-Servicing Agreement entered into by the Master Servicer, expressly or
effectively provides that such agreement shall be suspended as to servicing
actions with respect to any Serviced Loan serviced thereunder at the time such
Serviced Loan becomes a Specially Serviced Loan unless such Serviced Loan is
then sub-serviced by Midland Loan Services, Inc. or its permitted successors and
assigns pursuant to such Sub-Servicing Agreement (but only until such time as
such Serviced Loan becomes a Corrected Serviced Loan); (iv) in the case of a
Sub-Servicing Agreement entered into by the Special Servicer, relates only to
Specially Serviced Loans or REO Properties and expressly or effectively provides
that such agreement shall terminate with respect to any such Serviced Loan that
becomes a Corrected Serviced Loan; (v) in the case of a Sub-Servicing Agreement
entered into by the Master Servicer, provides that the related Sub-Servicer
shall comply with all reasonable requests for additional information made by the
Master Servicer (provided, however, the related Sub-Servicer shall not be
required to furnish the same information to the Master Servicer more than once)
and, further, provides that the failure of the related Sub-Servicer to furnish
the Master Servicer on a timely basis with any required reports, statements or
other information, including without limitation, the reports referred to in
Section 3.12(a), either (A) shall permit the Master Servicer to make necessary
inquiries of the related borrower directly or (B) shall (subject to a cure
period not to exceed 60 days) constitute an event of default thereunder for
which the Master Servicer may terminate such Sub-Servicer without payment of any
termination fee (it being understood that notwithstanding anything to the
contrary in this clause (v), the obligations of a Sub-Servicer in respect of
Section 3.12(b) may be limited to the provision of reports as agreed between the
Master Servicer and such Sub-Servicer and response to reasonable inquiries from
the Master Servicer with respect thereto); (vi) subject to Section 3.08 and
Section 3.20(g), does not authorize any Sub-Servicer to approve a modification
or assumption of any Serviced Loan without the approval of the Master Servicer,
in the case of Performing Serviced Loans or of the Special Servicer, in the case
of Specially Serviced Loans or authorizes the Sub-Servicer to foreclose any
Serviced Loan without the approval of the Special Servicer; (vii) imposes no
liability whatsoever on the Trustee, the Certificateholders, any Companion Loan
Holder or any Controlling Holder with respect to anything contained therein
(provided, that nothing herein shall preclude the Master Servicer or the Special
Servicer from seeking any indemnification that it would be otherwise entitled to
under this Agreement); (viii) provides that the Master Servicer and the Special
Servicer each shall pay the fees of any Sub-Servicer retained by it in
accordance with the respective Sub-Servicing Agreement and, in any event, from
its own funds; and (ix) contain events of default materially similar to an Event
of Default hereunder for the Master Servicer and/or the Special Servicer, as the
case may be. References in this Agreement to actions taken or to be taken by the
Master Servicer or the Special Servicer, as the case may be, include actions
taken or to be taken by a Sub-Servicer on behalf of the Master Servicer or the
Special Servicer, as the case may be; and, in connection therewith, all amounts
advanced by any Sub-Servicer to satisfy the obligations of the Master Servicer
hereunder to make Advances shall be deemed to have been advanced by the Master
Servicer out of its own funds and, accordingly, such Advances shall be
recoverable by such Sub-Servicer in the same manner and out of the same funds as
if such Sub-Servicer were the Master Servicer, and, for so long as they are
outstanding, such Advances shall accrue interest in accordance with Section
3.11(g) and/or Section 4.03(d), such interest to be allocable between the Master
Servicer and such Sub-Servicer as they may agree. For purposes of this
Agreement, the Master Servicer and the Special Servicer each shall be deemed to
have received any payment when a Sub-Servicer retained by it receives such
payment. The Master Servicer and the Special Servicer each shall notify the
other such party, the Trustee and the related Companion Loan Holder (in the case
of a Whole Loan) and the Depositor in writing promptly of the appointment by it
of any Sub-Servicer, and shall deliver to the Trustee copies of all
Sub-Servicing Agreements, and any amendments thereto and modifications thereof,
entered into by it promptly upon its execution and delivery of such documents.
(b) Each Sub-Servicer actually performing servicing functions (i)
shall be authorized to transact business in the state or states in which the
Mortgaged Properties for the Serviced Loans it is to service are situated, if
and to the extent required by applicable law, and (ii) to the extent
sub-servicing multifamily loans, shall be an approved conventional
seller/servicer of multifamily mortgage loans for Xxxxxxx Mac or Xxxxxx Mae or a
HUD-Approved Servicer.
(c) The Master Servicer and the Special Servicer, for the benefit of
the Trustee and the Certificateholders and the related Companion Loan Holder (in
the case of a Whole Loan), shall (at no expense to the Certificateholders, any
Companion Loan Holder (in the case of a Whole Loan) or the Trust) each monitor
the performance and enforce the obligations of its Sub-Servicers under the
related Sub-Servicing Agreements. Such enforcement, including, without
limitation, the legal prosecution of claims, termination of Sub-Servicing
Agreements in accordance with their respective terms and the terms of this
Agreement, and the pursuit of other appropriate remedies, shall be in such form
and carried out to such an extent and at such time as the Master Servicer or the
Special Servicer, as the case may be, in its reasonable business judgment, would
require were it the owner of the Serviced Loans. Promptly upon becoming aware of
a default under any Sub-Servicing Agreement to which it is a party, the Master
Servicer or the Special Servicer, as the case may be, shall notify each of the
other parties hereto, the Trustee and the related Companion Loan Holder (in the
case of a Whole Loan), and then the Trustee shall provide a copy of such notice
to the Directing Certificateholder, and, in accordance with Section 8.12(b),
shall, upon request, provide a copy of such notice to each Holder of a
Non-Registered Certificate (except a Class V, Class R-I or Class R-II
Certificate) of any such default.
(d) With respect to the Sub-Servicing Agreements in effect as of the
Closing Date that are listed on Schedule II, the initial Master Servicer hereby
agrees that it shall not, in its capacity as Master Servicer, terminate any
Sub-Servicer thereunder without cause. In the event of the resignation, removal
or other termination of the initial Master Servicer (or any successor Master
Servicer) hereunder for any reason, the successor to the initial Master Servicer
(or to such successor Master Servicer) shall elect, with respect to any
Sub-Servicing Agreement existing at the time of such termination (i) to assume
the rights and obligations of the predecessor Master Servicer under such
Sub-Servicing Agreement and continue the sub-servicing arrangements thereunder
on the same terms (including without limitation the obligation to pay the same
sub-servicing fees and other compensation), (ii) to enter into a new
Sub-Servicing Agreement with such Sub-Servicer and on such terms as the new
Master Servicer and such Sub-Servicer shall mutually agree (it being understood
that such Sub-Servicer is under no obligation to accept any such new
Sub-Servicing Agreement or to enter into or continue negotiations with the new
Master Servicer) or (iii) except with respect to those Sub-Servicing Agreements
listed on Schedule II, which may only be terminated for cause, to terminate such
Sub-Servicing Agreement without cause provided that such Sub-Servicing
Agreements have events of default that are similar to the Events of Default set
forth in Section 7.01. Nothing in the foregoing provisions of this Section
3.22(d) shall limit the ability of the initial or a successor Master Servicer to
terminate a Sub-Servicer at any time for cause; provided, however, the parties
hereto understand and agree that the refusal or failure of a Sub-Servicer to
enter into or continue negotiations with a successor Master Servicer concerning
a new Sub-Servicing Agreement shall not constitute cause for termination.
References in this Section 3.22(d) to Master Servicer, successor Master Servicer
or subsequent successor Master Servicer shall mean the Trustee, if it is then
Master Servicer, successor Master Servicer or subsequent Master Servicer
pursuant to the operation of Section 7.02.
(e) In the event the Trustee or its designee assumes the rights and
obligations of the Master Servicer or the Special Servicer under any
Sub-Servicing Agreement, the Master Servicer or the Special Servicer, as the
case may be, at its expense shall, upon request of the Trustee, deliver to the
assuming party all documents and records relating to such Sub-Servicing
Agreement and the Serviced Loans then being serviced thereunder and an
accounting of amounts collected and held on behalf of it thereunder, and
otherwise use its best efforts to effect the orderly and efficient transfer of
the Sub-Servicing Agreement to the assuming party.
(f) Notwithstanding any Sub-Servicing Agreement, the Master Servicer
and the Special Servicer shall each remain obligated and liable to the Trustee
and the Certificateholders for the performance of its obligations and duties
under this Agreement in accordance with the provisions hereof to the same extent
and under the same terms and conditions as if it alone were servicing and
administering the Serviced Loans for which it is responsible.
(g) Notwithstanding anything to the contrary set forth herein, any
account established and maintained by a Sub-Servicer pursuant to a Sub-Servicing
Agreement with the Master Servicer shall for all purposes under this Agreement
be deemed to be an account established and maintained by the Master Servicer.
(h) Each Sub-Servicer pursuant to its related Sub-Servicing
Agreement shall retain the original of any letter of credit that has been issued
in connection with any Serviced Loan that it sub-services pursuant to such
agreement on behalf of the Master Servicer for the benefit of the
Certificateholders provided that it shall provide a copy of such letter of
credit to the Master Servicer.
(i) The Master Servicer and the Special Servicer shall use
commercially reasonable efforts (including enforcement as such term is described
in Section 3.22(c)) to cause each Additional Servicer and/or Servicing Function
Participant with which it has entered into a servicing relationship with respect
to the Mortgage Loans to, forward a copy of each report or statement prepared by
such party pursuant to Section 11.09, 11.10 and/or 11.11 to the Rating Agencies
and the Directing Certificateholder and the related Companion Loan Holder (in
the case of a Whole Loan).
Section 3.23 Designation of the Special Servicer by the Majority
Certificateholder of the Controlling Class or the Controlling Holder.
(a) The Majority Certificateholder of the Controlling Class may at
any time and from time to time terminate (with or without cause) and replace any
existing Special Servicer or any Special Servicer that has resigned or otherwise
ceased to serve as Special Servicer (other than with respect to any Whole Loan).
Such Majority Certificateholder shall so designate a Person to so serve by the
delivery to the Trustee of a written notice stating such designation. The
Trustee shall, promptly after receiving any such notice, so notify the Rating
Agencies. The designated Person shall become the Special Servicer as of the date
the Trustee shall have received: (i) written confirmation from each Rating
Agency stating that if the designated Person were to serve as Special Servicer
hereunder, none of the then current ratings assigned by such Rating Agency to
the respective Classes of the Certificates would be downgraded, qualified (if
applicable) or withdrawn as a result thereof; (ii) a written acceptance of all
obligations of the Special Servicer under this Agreement, executed by the
designated Person; and (iii) an Opinion of Counsel (at the expense of the Person
designated to become the Special Servicer) to the effect that the designation of
such Person to serve as Special Servicer is in compliance with this Section
3.23, that upon the execution and delivery of the written acceptance referred to
in the immediately preceding clause (ii), the designated Person shall be bound
by the terms of this Agreement and that this Agreement shall be enforceable
against the designated Person in accordance with its terms. The existing Special
Servicer shall be deemed to have resigned simultaneously with such designated
Person's becoming the Special Servicer hereunder; provided, however, (i) the
terminated or resigned, as applicable, Special Servicer shall continue to be
entitled to receive all amounts accrued or owing to it under this Agreement on
or prior to the effective date of such resignation, whether in respect of
Servicing Advances or otherwise, (ii) it shall be entitled to certain Workout
Fees thereafter received to the extent permitted by Section 3.11(c), and (iii)
it and its directors, officers, employees and agents shall continue to be
entitled to the benefits of Section 6.03, notwithstanding any such termination
or resignation. Such terminated Special Servicer shall cooperate with the
Trustee and the replacement Special Servicer in effecting the termination of its
responsibilities and rights hereunder, including, without limitation, the
transfer within two Business Days to the replacement Special Servicer for
administration by it of all cash amounts that shall at the time be or should
have been credited by the terminated Special Servicer to the REO Account or
delivered to the Master Servicer or that are thereafter received by the
terminated Special Servicer with respect to Specially Serviced Loans and REO
Properties and the execution and delivery of such documents acknowledging its
termination as Special Servicer as may be required by any Rating Agency. The
Majority Certificateholder of the Controlling Class shall be responsible for
paying any costs associated with such replacement, including the reasonable
costs of any servicing transfer.
(b) Solely with respect to A/B Whole Loans, the related Controlling
Holder shall be entitled to terminate the rights and obligations of the Special
Servicer under this Agreement with respect the related A/B Whole Loan, with or
without cause, upon ten Business Days notice to the Special Servicer, the Master
Servicer and the Trustee, and to appoint a successor Special Servicer; provided,
however, as evidenced in writing by each of the Rating Agencies, the appointment
of the proposed successor of the Special Servicer will not, in and of itself,
result in a downgrading, withdrawal or qualification of the then current ratings
provided by the Rating Agencies in respect to any Class of Certificates. Except
as provided in this Section 3.23(b), there shall not be more than two Special
Servicers appointed under this Agreement. No penalty or fee shall be payable to
the Special Servicer with respect to any termination pursuant to this Section
3.23(b). Such Controlling Holder shall cause the Special Servicer to be
reimbursed for the payment of any outstanding reasonable out-of-pocket costs and
expenses pursuant to the terms hereof, which costs and expenses shall not be an
expense of the Trust Fund and shall be responsible for paying any costs
associated with any such replacement of the Special Servicer, including
reasonable costs of any servicing transfer.
The successor Special Servicer shall notify the Depositor and the
Trustee of any appointment contemplated by this Section 3.23 at least two
Business Days prior to the effective date thereof and shall provide the
Depositor and the Trustee with all information reasonably requested by the
Depositor to comply with its reporting obligation under Item 6.02 of Form 8-K
not later than the effective date of such appointment.
The terminated Special Servicer (i) shall continue to be entitled to
receive all amounts accrued or owing to it under this Agreement on or prior to
the effective date of such termination, whether in respect of Servicing Advances
or otherwise, (ii) it shall be entitled to certain Workout Fees thereafter
received to the extent permitted by Section 3.11(c), and (iii) it and its
directors, officers, employees and agents shall continue to be entitled to the
benefits of Section 6.03, notwithstanding any such termination. Such terminated
Special Servicer shall cooperate with the Trustee and the replacement Special
Servicer in effecting the termination of its responsibilities and rights
hereunder, including, without limitation, the transfer within two Business Days
to the replacement Special Servicer for administration by it of all cash amounts
that shall at the time be or should have been credited by the terminated Special
Servicer to the REO Account or delivered to the Master Servicer or that are
thereafter received by the terminated Special Servicer with respect to Specially
Serviced Loans and REO Properties and the execution and delivery of such
documents acknowledging its termination as Special Servicer as may be required
by any Rating Agency.
Section 3.24 Confidentiality.
Subject to the terms of Section 3.19(a), the Master Servicer and the
Special Servicer will use reasonable efforts to keep confidential and not
disclose to any Person other than each other, the Depositor, the Trustee, a
Controlling Class Certificateholder, the Sub-Servicer (with respect to any
Serviced Loans it is sub-servicing), a Borrower (with respect to the related
Serviced Loan), any Certificateholder, the related Companion Loan Holder (in the
case of a Whole Loan) and the Rating Agencies, any information that it obtains
in its capacity as Master Servicer or Special Servicer with respect to the
Serviced Loans or any related Mortgagor including, without limitation, credit
information with respect to any such Mortgagor (collectively, "Confidential
Information"), except (i) any officers, directors and employees of the Master
Servicer or Special Servicer (or any officers, directors and employees of any
Affiliates of the Master Servicer or Special Servicer); (ii) auditors and
government regulators of the Master Servicer or the Special Servicer and any
agents, financial or tax advisors, attorneys, accountants and professional
consultants retained by the Master Servicer or the Special Servicer in
connection with the transactions contemplated by this Agreement that have been
informed of the confidential nature of the information provided to them; (iii)
each Mortgage Loan Seller with respect to information relating to the Loans
transferred into the Trust by such Mortgage Loan Seller; (iv) a potential
purchaser of servicing rights hereunder that has agreed to keep such information
confidential; (v) to the extent the Master Servicer or Special Servicer deems
such disclosure to be reasonably necessary in carrying out its duties pursuant
to this Agreement or any Sub-Servicing Agreement; (vi) to the extent such
information is publicly available or otherwise available from sources unrelated
to this transaction; (vii) to the extent such disclosure is required by law or
court order or is demanded pursuant to a subpoena; (viii) to the extent such
information is required to be delivered to third parties (including, without
limitation, property inspectors, tax service companies, insurance carriers, and
data systems vendors) in connection with the performance of the Master
Servicer's or the Special Servicer's obligations hereunder; or (ix) to the
extent the Depositor consents in writing to such disclosure. For purposes of
this paragraph, the terms "Master Servicer" and "Special Servicer" shall mean
the divisions or departments of such corporate entities involved in providing
services hereunder and their respective officers, directors and employees.
Notwithstanding anything in this Section 3.24 to the contrary, the Master
Servicer, and any Sub-Servicer with the prior written permission of the Master
Servicer, may disseminate pool-wide and general statistical information relating
to the Loans and the Loan portfolio being serviced (as to any Sub-Servicer,
limited to its own sub-serviced portfolio), so long as no Mortgagors are
identified. In no event shall the Master Servicer or Special Servicer have any
liability under this Section 3.24 for reporting, delivering or disclosing
information in good faith pursuant to the duties and requirements imposed by it
under the other provisions of this Agreement.
Section 3.25 No Solicitation of Prepayments.
Neither the Master Servicer nor the Special Servicer shall solicit
or permit any Affiliate to solicit, either directly or indirectly, prepayments
from any Mortgagors under the Loans; provided that payments on any ARD Loan on
or after the related Anticipated Repayment Date shall be deemed not to
constitute prepayments for this purpose; provided, however, the foregoing
restriction shall not be interpreted to prohibit such solicitation by a division
or department of, or an Affiliate of, the Master Servicer or the Special
Servicer, or otherwise by a division or department of, or an Affiliate of, the
Master Servicer or the Special Servicer if such solicitation occurs incidentally
in the normal course of business and such solicitation is not conducted, in
whole or in part, (i) by an individual engaged at any time in activities
relating to the servicing of Loans or (ii) based upon or otherwise with the
benefit of information or documentation relating to the Certificates obtained by
or through the business unit within the Master Servicer or Special Servicer
responsible for servicing the Loans (other than information that has previously
been filed with the Commission without fault by such Person), including without
limitation any listing of the Loans or related Mortgagors or Mortgaged
Properties. Each Sub-Servicing Agreement shall contain a provision identical to
the foregoing with respect to the related Sub-Servicer.
Section 3.26 Certain Matters with Respect to Serviced Loans
Permitting Defeasance, Franchise Mortgage Loans and Certain Mortgage Loans
Permitting Additional Debt.
(a) With respect to each Serviced Loan as to which the Master
Servicer shall have the discretion pursuant to the terms thereof to require the
related Mortgagor to post defeasance collateral consisting of U.S. government
securities, within the meaning of Treasury Regulations Section
1.860G-2(a)(8)(i), in an amount sufficient to make all scheduled payments under
the Mortgage Note when due in lieu of making a permitted prepayment, the Master
Servicer shall so require defeasance; provided that the Master Servicer has
received an Opinion of Counsel that such defeasance complies with Treasury
Regulations Section 1.860G-2(a)(8). The Master Servicer may accept as defeasance
collateral any "government security," within the meaning of Treasury Regulations
Section 1.860G-(2)(a)(8)(i), notwithstanding any more restrictive requirements
in the Mortgage.
(b) The Master Servicer shall require, as a condition to the
exercise by the Mortgagor of any defeasance rights, that the Mortgagor pay any
costs and expenses associated with such exercise.
(c) To the extent that the terms of a Mortgage permit defeasance,
the Master Servicer shall require the related Mortgagor to deliver a
certification from the Mortgagor's independent certified public accountants as
to the sufficiency of the related U.S. government securities, and provide a copy
of such certification to each Rating Agency and the Directing Certificateholder.
(d) To the extent that the terms of a Mortgage permit defeasance,
the Master Servicer shall not approve the form and substance of any required
legal documents in connection with such defeasance unless (i) to the extent that
the outstanding principal balance of a Mortgage Loan is $35,000,000 or more, or
constitutes 5.0% or more of the then current principal balance of the Mortgage
Pool or such Mortgage Loan comprises at the time one of the ten largest Mortgage
Loans (by outstanding principal balance) in the Mortgage Pool, Fitch and S&P
each shall have confirmed to it in writing that such defeasance will not result
in the withdrawal, downgrade or qualification (if applicable) of the rating of
any Class of Certificates or Companion Loan Securities, (ii) it shall have
obtained an Opinion of Counsel that the defeasance complies with applicable
REMIC Provisions; and, (iii) it shall have obtained an accountant's
certification that the defeasance collateral is sufficient to make payments
under the related Mortgage Loan for the remainder of its term. In the case of
the defeasance of any Mortgage Loan that does not require a Rating Agency
confirmation pursuant to the immediately preceding clause (i), the Master
Servicer must provide to S&P after completion of the defeasance a certification
substantially in the form of Exhibit J hereto.
(e) With respect to each Serviced Loan that provides for defeasance,
to the extent permitted by the terms of such Mortgage Loan, or if so requested
by the Rating Agencies, the Master Servicer shall use its best efforts to have
the related Mortgagor (i) designate a Single-Purpose-Entity (if the borrower no
longer complies) to assume the Mortgage Loan and own the collateral and (ii)
provide an opinion from counsel that the Trustee has a perfected security
interest in the new collateral.
(f) To the extent that (i) the outstanding principal balance of a
Mortgage Loan is $35,000,000 or more or constitutes 2.0% or more of the then
current principal balance of the Mortgage Pool or such Mortgage Loan comprises
at the time one of the ten largest Mortgage Loans (by outstanding principal
balance) in the Mortgage Pool, and (ii) the terms of the related loan documents
require the consent of the lender in order for the related Mortgagor to change
the manager of the related Mortgaged Property, the Master Servicer shall not so
consent to such a change in management unless it has received (a) the prior
consent of the Special Servicer, which will be deemed given if such party has
not responded within ten Business Days (as such period may be extended herein if
the consent of the Directing Certificateholder or any Controlling Holder (if an
A/B Whole Loan is involved) is required hereunder) following delivery of request
for consent together with any information reasonably necessary to make a
decision and (b) a written confirmation from each Rating Agency such a change in
management, if effected, would not result in the withdrawal, downgrade or
qualification (if applicable) of the rating of any Class of Certificates or
Companion Loan Securities.
(g) Notwithstanding anything contained in this Section 3.26 the
Master Servicer will disregard any objection of the Directing Certificateholder
or any Controlling Holder (if an A/B Whole Loan is involved), as applicable,
that would result in a Prohibited Action.
Section 3.27 Application of Default Charges.
(a) Subject to the terms of any applicable Intercreditor Agreement,
any and all Default Charges that are actually received by or on behalf of the
Trust with respect to the Mortgage Pool, shall be applied for the following
purposes and in the following order, in each case to the extent of the remaining
portion of such Default Charges:
first, to pay to the Trustee, the Master Servicer or the Special
Servicer, in that order, any Advance Interest due and owing to such party
on outstanding Advances made thereby with respect to any Mortgage Loan or
REO Loan in the Mortgage Pool;
second, to reimburse the Trust for any Advance Interest paid to the
Trustee, the Master Servicer or the Special Servicer since the Closing
Date with respect to any Mortgage Loan or REO Loan in the Mortgage Pool
during the 12-month period preceding the receipt of such Default Charges,
which Advance Interest was paid from a source other than Default Charges
received on the Mortgage Pool (provided, however, if the Special Servicer
is able to determine that such Default Charges are related to any
Specially Serviced Loan or REO Loan in respect of which Advance Interest
was paid to the Trustee, the Master Servicer or the Special Servicer prior
to such 12-month period from a source other than Default Charges received
on the Mortgage Pool, then the Master Servicer shall conclusively rely on
such determination and shall apply such Default Charges to reimburse the
Trust for such Advance Interest);
third, to pay the Special Servicer for any Servicing Advances made
for the cost of an inspection made on a Specially Serviced Loan;
fourth, to reimburse the Trust for any other Additional Trust Fund
Expenses incurred with respect to any Mortgage Loan or REO Loan in the
Mortgage Pool during the 12-month period prior to the receipt of such
Default Charges, which Additional Trust Fund Expenses were previously paid
from a source other than Default Charges received on the Mortgage Pool
(provided, however, if the Special Servicer is able to determine that such
Default Charges are related to any Specially Serviced Loan or REO Loan in
respect of which any Additional Trust Fund Expense was paid to the Trustee
prior to such 12-month period from a source other than Default Charges
received on the Mortgage Pool, then the Master Servicer shall conclusively
rely on such determination and shall apply such Default Charges to
reimburse the Trust for such Additional Trust Fund Expense);
fifth, to pay the Master Servicer for Servicing Advances made for
the cost of an inspection made on a Loan other than a Specially Serviced
Loan; and
sixth, to pay any remaining portion of such Default Charges as
Additional Master Servicing Compensation to the Master Servicer, if such
Default Charges were collected with respect to a Performing Serviced Loan,
and otherwise to pay any remaining portion of such Default Charges as
Additional Special Servicing Compensation to the Special Servicer.
(b) Default Charges applied to reimburse the Trust pursuant to
either clause second or clause fourth of Section 3.27(a) is intended to be
available for distribution on the Certificates pursuant to Section 4.01(b),
subject to application pursuant to Section 3.05(a), Section 3.05(b), Section
3.05(c) or Section 3.05(f) for any items payable out of general collections on
the Mortgage Pool. Default Charges applied to reimburse the Trust pursuant to
either clause second or clause fourth of Section 3.27(a) shall be deemed to
offset payments of Advance Interest or other Additional Trust Fund Expenses
(depending on which clause is applicable) in the chronological order in which
they were made or incurred (whereupon such Advance Interest or other Additional
Trust Fund Expenses (depending on which clause is applicable) shall thereafter
be deemed to have been paid out of Default Charges).
(c) Subject to the terms of any applicable Intercreditor Agreement,
any and all Default Charges that are actually collected with respect to any
Companion Loan related to a Whole Loan or any successor REO Loan with respect
thereto during any Collection Period (as allocable thereto pursuant to the
related loan agreement), shall be applied for the following purposes and in the
following order, in each case to the extent of the remaining portion of such
Default Charges:
first, to pay to the Trustee, the Master Servicer or the Special
Servicer, in that order, any Advance Interest due and owing to such party on
outstanding Servicing Advances made thereby with respect to any Mortgage Loan or
REO Loan in the Mortgage Pool;
second, to pay to the Trustee and, in the case of a Serviced Whole
Loan, any trustee under a securitization of such Companion Loan, pro rata; the
Master Servicer and, in the case of a Serviced Whole Loan with a Pari Passu
Companion Loan, any master servicer under a securitization of such Companion
Loan, pro rata; or the Special Servicer and, in the case of a Serviced Whole
Loan with a Pari Passu Companion Loan, any special servicer under a
securitization of such Companion Loan, pro rata; in that order, any interest due
and owing to such party on any outstanding P&I Advances (or comparable debt
service advances) made thereby, with respect to any Loan or REO Loan in such
Whole Loan or the related REO Mortgaged Property and reimbursed in the related
Collection Period (to be applied with respect to any particular party in such
manner that the interest that accrued first and has been outstanding the longest
shall be paid first); and
third, to pay any remaining portion of such Default Charges as
Additional Master Servicing Compensation to the Master Servicer, to the extent
received, if they were accrued with respect to such Companion Loan during a
period that it was a Performing Loan, or as Additional Special Servicing
Compensation to the Special Servicer, to the extent received, if they were
accrued with respect to such Companion Loan during a period that it was a
Specially Serviced Loan or an REO Loan, in each case pursuant to Section 3.11.
Section 3.28 Matters Regarding the Whole Loans.
(a) No Companion Loan Holder will have any liability to the Trust or
the Certificateholders for any action taken, or for refraining from the taking
of any action, in good faith pursuant to this Agreement, or for errors in
judgment; provided, however, such Companion Loan Holder will not be protected
against any liability which would otherwise be imposed by reason of willful
misfeasance, bad faith or negligence in the performance of duties or by reason
of negligent disregard of duties.
(b) Each Companion Loan Holder shall be entitled to receive a copy
of any report required to be delivered (upon request or otherwise) to the
Trustee with respect to the related Whole Loan or any related REO Property by
any other party hereto. The related Companion Loan Holder shall also be entitled
to receive a copy of any document, certificate, instrument, notice or
correspondence required to be delivered (upon request or otherwise) by the
Trustee or Master Servicer with respect to the related Whole Loan or any related
REO Property to any other party hereto. In addition, the related Companion Loan
Holder, or a servicer acting on its behalf, shall be entitled to request
information from the Master Servicer with respect to the related Whole Loan to
permit customary reporting with respect to a securitization relating to the
related Companion Loan; provided, however, the information provider shall not be
required to deliver information relating to Loans other than the related Whole
Loan or information of a scope or nature that is materially different from that
which is required to be delivered by the Master Servicer under this Agreement.
The Master Servicer shall be permitted to require payment of a sum sufficient to
cover the reasonable costs and expenses of providing such information.
(c) If, pursuant to Section 2.03, Section 3.18 or Section 9.01, the
Mortgage Loan included in a Whole Loan is purchased or repurchased from the
Trust Fund, the purchaser thereof shall be bound by the terms of the related
Intercreditor Agreement and shall assume the rights and obligations of the
holder of the related Note under the related Intercreditor Agreement. All
portions of the related Mortgage File and other documents pertaining to such
Mortgage Loan shall be endorsed or assigned to the extent necessary or
appropriate to the purchaser of such Mortgage Loan in its capacity as the holder
of the related Note (as a result of such purchase or repurchase), under the
related Intercreditor Agreement in the manner contemplated under such agreement,
which such purchaser shall be deemed to acknowledge and thereafter such Mortgage
File shall be held by such purchaser or a custodian appointed thereby for the
benefit of each Note holder (as their interests appear under the related
Intercreditor Agreement). If the related Servicing File is not already in the
possession of such purchaser or custodian (as the case may be), it shall be
delivered to the master servicer or special servicer, as the case may be, under
the separate servicing agreement for the related Whole Loan.
Section 3.29 Matters Regarding the Non-Serviced Whole Loans.
(a) In the event that (i) any of the Beacon Seattle & DC Portfolio
Trustee, Beacon Seattle & DC Portfolio Master Servicer or the Beacon Seattle &
DC Portfolio Special Servicer shall be replaced in accordance with the terms of
the Beacon Seattle & DC Portfolio Pooling Agreement, the Master Servicer and the
Special Servicer shall acknowledge any such successor as the successor to the
Beacon Seattle & DC Portfolio Trustee, Beacon Seattle & DC Portfolio Master
Servicer or the Beacon Seattle & DC Portfolio Special Servicer, as the case may
be, and shall notify the Trustee regarding such replacement and (ii) any of the
000 Xxxxxxxxx Xxxxxx Trustee, the 000 Xxxxxxxxx Xxxxxx Master Servicer or the
000 Xxxxxxxxx Xxxxxx Special Servicer shall be replaced in accordance with the
terms of the 000 Xxxxxxxxx Xxxxxx Pooling Agreement, the Master Servicer and the
Special Servicer shall acknowledge any such successor as the successor to the
000 Xxxxxxxxx Xxxxxx Trustee, the 000 Xxxxxxxxx Xxxxxx Master Servicer or the
000 Xxxxxxxxx Xxxxxx Special Servicer, as the case may be, and shall notify the
Trustee regarding such replacement.
(b) The Master Servicer shall deliver, or cause to be delivered, to
the Trustee, promptly following receipt (i) from the Beacon Seattle & DC
Portfolio Master Servicer, Beacon Seattle & DC Portfolio Special Servicer or the
Beacon Seattle & DC Portfolio Trustee, any servicing reports concerning the
Beacon Seattle & DC Portfolio Mortgage Loan and (ii) from the 000 Xxxxxxxxx
Xxxxxx Master Servicer, the 000 Xxxxxxxxx Xxxxxx Special Servicer or the 000
Xxxxxxxxx Xxxxxx Trustee, any servicing reports concerning the 000 Xxxxxxxxx
Xxxxxx Pari Passu Mortgage Loan.
Section 3.30 Certain Powers of the Controlling Holders and Certain
Intercreditor Matters.
(a) No Controlling Holder shall owe any fiduciary duty to the
Trustee, the Master Servicer, the Special Servicer or any Certificateholder with
respect to the related Whole Loan. The related Controlling Holder will not have
any liability to the Certificateholders for any action taken, or for refraining
from the taking of any action or the giving or withholding of any consent,
pursuant to this Agreement, or for errors in judgment. By its acceptance of a
Certificate, each Certificateholder confirms its understanding that a
Controlling Holder may take or refrain from taking actions that favor the
interests of one or more Classes of the Certificates over other Classes of the
Certificates, and that a Controlling Holder may have special relationships and
interests that conflict with those of Holders of some Classes of the
Certificates, that a Controlling Holder does not have any duties to the Holders
of any Class of Certificates, and that the related Controlling Holder shall have
no liability whatsoever for having so acted, and no Certificateholder may take
any action whatsoever against a Controlling Holder or any director, officer,
employee, agent or principal thereof for having so acted.
(b) Notwithstanding anything in this Agreement to the contrary, with
respect to each A/B Whole Loan, the related Controlling Holder, in lieu of the
Directing Certificateholder, shall be entitled to exercise all rights of the
Directing Certificateholder under this Agreement with respect to the related A/B
Whole Loan, as applicable, and any references to the Directing Certificateholder
in this Agreement relating to actions permitted to be taken only with the
consent of the Directing Certificateholder with respect to such A/B Whole Loan
shall be deemed to be references to the related Controlling Holder; provided,
however, (i) the Directing Certificateholder shall also have the right to
receive all reports and notices under this Agreement (which shall not be an
expense of the related Controlling Holder), (ii) the Directing Certificateholder
shall also have the right to consult with the Special Servicer (on a non-binding
basis) regarding such A/B Whole Loan and (iii) the Directing Certificateholder
(and not the related Controlling Holder) shall be entitled to exercise the
Purchase Option set forth in Section 3.18(c) with respect to such A/B Whole
Loan. In addition, the applicable Controlling Holder shall have any rights,
whether or not additional, that are specified in the related Intercreditor
Agreement.
In addition, if a Control Appraisal Period exists with respect to an
A/B Whole Loan, then the related Controlling Holder shall be the Directing
Certificateholder who shall be authorized to exercise any of its approval and
consent rights and powers provided for in Section 3.23, this Section 3.30 or
elsewhere in this Agreement or the related Intercreditor Agreement with respect
to such A/B Whole Loan, subject to the provisions of the related Intercreditor
Agreement; provided, however, the related Note B Holder shall nevertheless
retain the right to receive distributions and (if the Note B Holder is not the
related Borrower or an affiliate thereof) notices and reports under this
Agreement.
(c) Within five Business Days of receipt of written notice that a
new related Controlling Holder has been selected, the Trustee shall deliver
notice to the Master Servicer and the Special Servicer, of such related
Controlling Holder's identity.
(d) With respect to each A/B Whole Loan, notwithstanding anything to
the contrary contained herein, the related Controlling Holder shall have the
right to cure monetary and non-monetary defaults by the related Borrower as
provided in the related Intercreditor Agreement.
Section 3.31 [RESERVED].
Section 3.32 Litigation Control.
The Special Servicer, with respect to litigation involving Specially
Serviced Loans, and the Master Servicer, with respect to litigation involving
Performing Serviced Loans, and where the applicable servicer contemplates
availing itself or the Trustee on behalf of the Trust Fund of indemnification as
provided for under this Agreement, such servicer shall, for the benefit of the
Certificateholders, direct, manage, prosecute, defend and/or settle any and all
claims and litigation ("Litigation Control") relating to (a) the enforcement of
the obligations of a Borrower under the related loan documents and (b) any
action brought against the Trust Fund or any party to this Agreement with
respect to any Mortgage Loan. Such Litigation Control shall be carried out in
accordance with the terms of this Agreement, including, without limitation, the
Servicing Standard. Upon becoming aware of or being named in any such claims or
litigation, the Master Servicer shall immediately notify the Directing
Certificateholder and the Trustee of such claims or litigation. In addition, the
Master Servicer shall prepare and submit a monthly status report regarding any
Litigation Control matter to the Directing Certificateholder.
Notwithstanding the foregoing, each of the Special Servicer and the
Master Servicer, as applicable, shall consult with and keep the Directing
Certificateholder and the Trustee advised of any material development including
without limitation (i) any material decision concerning Litigation Control and
the implementation thereof and (ii) any decision to agree to or propose any
terms of settlement, and shall submit any such development or decision to the
Directing Certificateholder for its approval or consent. Subject to the second
to last paragraph of this Section 3.32, the Special Servicer or the Master
Servicer shall not take any action implementing any such material development or
decision described in the preceding sentence unless and until it has notified in
writing the Directing Certificateholder and the Directing Certificateholder has
not objected in writing within five Business Days of having been notified
thereof and having been provided with all information that the Directing
Certificateholder has reasonably requested with respect thereto promptly
following its receipt of the subject notice (it being understood and agreed that
if such written objection has not been received by the Special Servicer or the
Master Servicer, as applicable, within such five-Business Day period, then the
Directing Certificateholder shall be deemed to have approved the taking of such
action); provided that, in the event that the Special Servicer or the Master
Servicer, as applicable, determines that immediate action is necessary to
protect the interests of the Certificateholders (as a collective whole), the
Special Servicer or the Master Servicer, as applicable, may take such action
without waiting for the response of the Directing Certificateholder; provided
that the Special Servicer or the Master Servicer, as applicable, has reasonably
determined that the Directing Certificateholder has received notice of such
action in writing.
With respect to any Litigation Control otherwise required to be
exercised hereunder by the Master Servicer relating to a Mortgage Loan that has
either (i) been satisfied or paid in full or (ii) as to which a Final Recovery
Determination has been made, after receiving the required notice from the Master
Servicer set forth above that it became aware of or was named in any such claims
or litigation, the Directing Certificateholder may direct in writing that the
such Litigation Control nevertheless be exercised by the Special Servicer;
provided that (a) the Special Servicer has determined, consistent with the
Servicing Standard, that its actions with respect to such obligations (including
without limitation settlements) (i) would be in the best interests of the
Certificateholders and, in the case of any Whole Loan, the related Companion
Loan Holder (as a collective whole), (ii) do not require any admission of
liability or wrongdoing on the part of the Master Servicer and (iii) are fully
indemnifiable (including without limitation on behalf of the Master Servicer)
under Section 6.03 and payable by the Trust; (b) all costs and fees incurred in
defending and settling the claims (including without limitation on behalf of the
Master Servicer) are indemnified expenses under Section 6.03; and (c) with
respect to a settlement, the Special Servicer has reasonably consulted with the
Master Servicer prior to such settlement.
Notwithstanding the foregoing, no advice, direction or objection of
the Directing Certificateholder shall (i) require or cause the Special Servicer
or the Master Servicer, as applicable, to violate the terms of any Mortgage Loan
or any related intercreditor, co-lender or similar agreement, applicable law or
any provision of this Agreement, including the Special Servicer's and the Master
Servicer's obligation to act in accordance with the Servicing Standard and to
maintain the REMIC status of each of REMIC I and REMIC II, (ii) result in an
Adverse REMIC Event with respect to either of REMIC I or REMIC II or an Adverse
Grantor Trust Event with respect to the related Grantor Trust, (iii) expose the
Master Servicer, the Special Servicer, the Depositor, any of the Mortgage Loan
Sellers, the Trust Fund, the Trustee or their Affiliates, officers, directors,
shareholders, partners, members, managers, employees or agents to any claim,
suit, or liability for which this Agreement does not provide indemnification to
such party or expose any such party to prosecution for a criminal offense, or
(iv) materially expand the scope of the Special Servicer's or the Master
Servicer's responsibilities under this Agreement; and neither the Special
Servicer nor the Master Servicer will follow any such advice, direction or
objection if given by the Directing Certificateholder or initiate any such
actions.
Notwithstanding the foregoing, (i) in the event that any action,
suit, litigation or proceeding names the Trustee in its individual capacity, or
in the event that any judgment is rendered against the Trustee in its individual
capacity, the Trustee, upon prior written notice to the Master Servicer or the
Special Servicer, as applicable, may retain counsel and appear in any such
proceeding on its own behalf in order to protect and represent its interests
(but not to otherwise direct, manage or prosecute such litigation or claim),
(ii) in the event of any action, suit, litigation or proceeding, other than an
action, suit, litigation or proceeding relating to the enforcement of the
obligations of a Mortgagor under the related loan documents or otherwise
relating to a Mortgage Loan or Mortgaged Property, neither the Master Servicer
nor the Special Servicer shall, without the prior written consent of the
Trustee, (A) initiate any action, suit, litigation or proceeding in the name of
the Trustee, whether in such capacity or individually, (B) engage counsel to
represent the Trustee, or (C) prepare, execute or deliver any government
filings, forms, permits, registrations or other documents or take any other
similar action with the intent to cause, and that actually causes, the Trustee
to be registered to do business in any state, and (iii) in the event that any
court finds that the Trustee is a necessary party in respect of any action,
suit, litigation or proceeding relating to or arising from this Agreement or any
Mortgage Loan, the Trustee shall have the right to retain counsel and appear in
any such proceeding on its own behalf in order to protect and represent its
interest, whether as Trustee or individually (but not to otherwise direct,
manage or prosecute such litigation or claim).
Section 3.33 Class A-2FL Swap Contract.
(a) On or before the Closing Date, the Swap Trustee, not in its
individual capacity but solely in its capacity as Swap Trustee, on behalf of the
Class A-2FL Grantor Trust, shall enter into the Class A-2FL Swap Contract and
related agreements with the Class A-2FL Swap Counterparty.
(b) Not later than 11:00 a.m. New York City time, on the second
Business Day prior to each Distribution Date, based on the CMSA Loan Periodic
Update File for the related Collection Period provided by the Master Servicer
pursuant to Section 3.12(d) and subject to the priorities set forth in Sections
4.01(a), 4.01(b) and 4.01(k), the Swap Trustee shall (i) calculate the Class
A-2FL Net Swap Payment in accordance with the terms of the Class A-2FL Swap
Contract and this Agreement, and (ii) notify the Class A-2FL Swap Counterparty
of any Class A-2FL Net Swap Payment. In the event the Swap Trustee fails to
receive any Class A-2FL Net Swap Payment payable by the Class A-2FL Swap
Counterparty on the second Business Day prior to the related Distribution Date,
the Swap Trustee shall provide the Class A-2FL Swap Counterparty with notice of
such non-payment no later than 5:00 p.m. New York City time on such date. On the
related Distribution Date following such notice of non-payment, if the Swap
Trustee fails to receive such Class A-2FL Net Swap Payment by 11:00 a.m. New
York City time on such Distribution Date, a Class A-2FL Swap Default and a Class
A-2FL Distribution Conversion shall occur on such Distribution Date.
(c) On each Distribution Date, the Swap Trustee shall remit the
Class A-2FL Net Swap Payment payable by the Class A-2FL Swap Trust, if any, to
the Class A-2FL Swap Counterparty from the Class A-2FL Floating Rate Account;
provided that upon and during the continuation of a Class A-2FL Distribution
Conversion, the Swap Trustee shall not make such payments to the Class A-2FL
Swap Counterparty. Promptly upon receipt of any payment or other receipt in
respect of the Class A-2FL Swap Contract, the Swap Trustee shall deposit the
same into the Class A-2FL Floating Rate Account.
(d) The Swap Trustee shall at all times enforce the Class A-2FL Swap
Trust's rights under the Class A-2FL Swap Contract. In the event of a Class
A-2FL Swap Default, the Swap Trustee shall promptly provide written notice to
the Holders of the Class A-2FL Certificates and shall be required to take such
actions (following the expiration of any applicable grace period specified in
the Class A-2FL Swap Contract), unless otherwise directed in writing by the
holders of 25% by Certificate Balance of the Class A-2FL Certificates, to
enforce the rights of the Class A-2FL Swap Trust under the Class A-2FL Swap
Contract as may be permitted by the terms thereof, including termination
thereof, and use Class A-2FL Swap Termination Fees, if any, received from the
Class A-2FL Swap Counterparty to enter into a replacement interest rate swap
contract on substantially identical terms or on such other terms reasonably
acceptable to the Swap Trustee and the Depositor, with a replacement swap
counterparty that would not cause a Rating Agency Trigger Event and satisfies
the requirements of the Class A-2FL Swap Contract, subject, in each case, to
written confirmation by the Rating Agencies that such action will not result in
a qualification, downgrade or withdrawal of the then current ratings of the
Certificates. If the costs attributable to entering into a replacement interest
rate swap contract would exceed the amount of any Swap Termination Fees, a
replacement interest rate swap contract shall not be entered into and any such
proceeds will instead be distributed, pro rata, to the holders of the Class
A-2FL Certificates on the immediately succeeding Distribution Date as part of
the Class A-2FL Interest Distribution Amount for such Distribution Date.
Notwithstanding anything to the contrary in the Agreement, the Swap Trustee
shall be under no obligation to take any action to enforce the rights of the
Class A-2FL Swap Trust under the Class A-2FL Swap Contract unless it is assured,
in its sole discretion, that the costs and expenses of such action(s) will be
reimbursed by the Holders of the Class A-2FL Certificates or another party
(other than the Class A-2FL Swap Trust and/or the Trust).
Any Class A-2FL Distribution Conversion shall become permanent
following the determination by the Swap Trustee not to enter into a replacement
interest rate swap contract and distribution of any Class A-2FL Swap Termination
Fees to the Holders of the Class A-2FL Certificates. Any such Swap Default (or
termination of the Class A-2FL Swap Contract) and the resulting Class A-2FL
Distribution Conversion shall not, in and of itself, constitute an Event of
Default under this Agreement.
Upon any change (or notification to the Swap Trustee that such
change is imminent) in the payment terms on the Class A-2FL Certificates,
including as a result of a Class A-2FL Distribution Conversion, termination of a
Class A-2FL Distribution Conversion, a Swap Default or the cure of a Swap
Default, the Swap Trustee shall promptly notify the Depositor of the change in
payment terms.
(e) [RESERVED].
(f) The Swap Trustee's obligation to pay to the Class A-2FL Swap
Counterparty any funds under the Class A-2FL Swap Contract shall be limited to
the provisions of Section 3.05(h) and in accordance with the priorities set
forth in Section 4.01(k); the Swap Trustee will have no obligation on behalf of
the Class A-2FL Swap Trust or the Trust Fund to pay or cause to be paid to the
Class A-2FL Swap Counterparty any portion of the amounts due to the Class A-2FL
Swap Counterparty under the Class A-2FL Swap Contract for any Distribution Date
unless and until the related interest payment on the Class A-2FL Regular
Interest for such Distribution Date is actually received by the Swap Trustee.
Any costs and expenses related to the Class A-2FL Swap Contract will
not be payable from the Class A-2FL Floating Rate Account and will not
constitute Class A-2FL Swap Trust expenses or Trust Fund expenses. No party
hereunder shall advance any Class A-2FL Net Swap Payment payable by the Class
A-2FL Swap Counterparty. Simultaneous with the delivery to the
Certificateholders, the Swap Trustee shall (1) make available to the Class A-2FL
Swap Counterparty the Distribution Date Statement and (2) make available or
deliver to the Class A-2FL Swap Counterparty copies of any other reports or
notices delivered to the Class A-2FL Certificateholders as and to the extent
required by the Class A-2FL Swap Contract.
Section 3.34 Class A-JFL Swap Contract.
(a) On or before the Closing Date, the Swap Trustee, not in its
individual capacity but solely in its capacity as Swap Trustee, on behalf of the
Class A-JFL Grantor Trust, shall enter into the Class A-JFL Swap Contract and
related agreements with the Class A-JFL Swap Counterparty.
(b) Not later than 11:00 a.m. New York City time, on the second
Business Day prior to each Distribution Date, based on the CMSA Loan Periodic
Update File for the related Collection Period provided by the Master Servicer
pursuant to Section 3.12(d) and subject to the priorities set forth in Sections
4.01(a), 4.01(b) and 4.01(n), the Swap Trustee shall (i) calculate the Class
A-JFL Net Swap Payment in accordance with the terms of the Class A-JFL Swap
Contract and this Agreement, and (ii) notify the Class A-JFL Swap Counterparty
of any Class A-JFL Net Swap Payment. In the event the Swap Trustee fails to
receive any Class A-JFL Net Swap Payment payable by the Class A-JFL Swap
Counterparty on the second Business Day prior to the related Distribution Date,
the Swap Trustee shall provide the Class A-JFL Swap Counterparty with notice of
such non-payment no later than 5:00 p.m. New York City time on such date. On the
related Distribution Date following such notice of non-payment, if the Swap
Trustee fails to receive such Class A-JFL Net Swap Payment by 11:00 a.m. New
York City time on such Distribution Date, a Class A-JFL Swap Default and a Class
A-JFL Distribution Conversion shall occur on such Distribution Date.
(c) On each Distribution Date, the Swap Trustee shall remit the
Class A-JFL Net Swap Payment payable by the Class A-JFL Swap Trust, if any, to
the Class A-JFL Swap Counterparty from the Class A-JFL Floating Rate Account;
provided that upon and during the continuation of a Class A-JFL Distribution
Conversion, the Swap Trustee shall not make such payments to the Class A-JFL
Swap Counterparty. Promptly upon receipt of any payment or other receipt in
respect of the Class A-JFL Swap Contract, the Swap Trustee shall deposit the
same into the Class A-JFL Floating Rate Account.
(d) The Swap Trustee shall at all times enforce the Class A-JFL Swap
Trust's rights under the Class A-JFL Swap Contract. In the event of a Class
A-JFL Swap Default, the Swap Trustee shall promptly provide written notice to
the Holders of the Class A-JFL Certificates and shall be required to take such
actions (following the expiration of any applicable grace period specified in
the Class A-JFL Swap Contract), unless otherwise directed in writing by the
holders of 25% by Certificate Balance of the Class A-JFL Certificates, to
enforce the rights of the Class A-JFL Swap Trust under the Class A-JFL Swap
Contract as may be permitted by the terms thereof, including termination
thereof, and use Class A-JFL Swap Termination Fees, if any, received from the
Class A-JFL Swap Counterparty to enter into a replacement interest rate swap
contract on substantially identical terms or on such other terms reasonably
acceptable to the Swap Trustee and the Depositor, with a replacement swap
counterparty that would not cause a Rating Agency Trigger Event and satisfies
the requirements of the Class A-JFL Swap Contract, subject, in each case, to
written confirmation by the Rating Agencies that such action will not result in
a qualification, downgrade or withdrawal of the then current ratings of the
Certificates. If the costs attributable to entering into a replacement interest
rate swap contract would exceed the amount of any Swap Termination Fees, a
replacement interest rate swap contract shall not be entered into and any such
proceeds will instead be distributed, pro rata, to the holders of the Class
A-JFL Certificates on the immediately succeeding Distribution Date as part of
the Class A-JFL Interest Distribution Amount for such Distribution Date.
Notwithstanding anything to the contrary in the Agreement, the Swap Trustee
shall be under no obligation to take any action to enforce the rights of the
Class A-JFL Swap Trust under the Class A-JFL Swap Contract unless it is assured,
in its sole discretion, that the costs and expenses of such action(s) will be
reimbursed by the Holders of the Class A-JFL Certificates or another party
(other than the Class A-JFL Swap Trust and/or the Trust).
Any Class A-JFL Distribution Conversion shall become permanent
following the determination by the Swap Trustee not to enter into a replacement
interest rate swap contract and distribution of any Class A-JFL Swap Termination
Fees to the Holders of the Class A-JFL Certificates. Any such Swap Default (or
termination of the Class A-JFL Swap Contract) and the resulting Class A-JFL
Distribution Conversion shall not, in and of itself, constitute an Event of
Default under this Agreement.
Upon any change (or notification to the Swap Trustee that such
change is imminent) in the payment terms on the Class A-JFL Certificates,
including as a result of a Class A-JFL Distribution Conversion, termination of a
Class A-JFL Distribution Conversion, a Swap Default or the cure of a Swap
Default, the Swap Trustee shall promptly notify the Depositor of the change in
payment terms.
(e) [RESERVED].
(f) The Swap Trustee's obligation to pay to the Class A-JFL Swap
Counterparty any funds under the Class A-JFL Swap Contract shall be limited to
the provisions of Section 3.05(i) and in accordance with the priorities set
forth in Section 4.01(n); the Swap Trustee will have no obligation on behalf of
the Class A-JFL Swap Trust or the Trust Fund to pay or cause to be paid to the
Class A-JFL Swap Counterparty any portion of the amounts due to the Class A-JFL
Swap Counterparty under the Class A-JFL Swap Contract for any Distribution Date
unless and until the related interest payment on the Class A-JFL Regular
Interest for such Distribution Date is actually received by the Swap Trustee.
Any costs and expenses related to the Class A-JFL Swap Contract will
not be payable from the Class A-JFL Floating Rate Account and will not
constitute Class A-JFL Swap Trust expenses or Trust Fund expenses. No party
hereunder shall advance any Class A-JFL Net Swap Payment payable by the Class
A-JFL Swap Counterparty. Simultaneous with the delivery to the
Certificateholders, the Swap Trustee shall (1) make available to the Class A-JFL
Swap Counterparty the Distribution Date Statement and (2) make available or
deliver to the Class A-JFL Swap Counterparty copies of any other reports or
notices delivered to the Class A-JFL Certificateholders as and to the extent
required by the Class A-JFL Swap Contract.
Section 3.35 [RESERVED].
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS AND RELATED MATTERS
Section 4.01 Distributions.
(a) (i) On each Distribution Date, amounts held in the REMIC I
Distribution Account shall be withdrawn or deemed to be withdrawn (to the extent
of the Available Distribution Amount, the "REMIC I Distribution Amount") in the
case of all Classes of REMIC I Regular Interests and distributed or deemed to be
distributed on the REMIC I Regular Interests as set forth in Section 4.01(a)(ii)
and distributed on the Class R-I Certificates as set forth in Section
4.01(a)(iii). Thereafter, until distributed to the Certificateholders, such
amounts shall be considered to be held in the REMIC II Distribution Account.
(ii) Principal and interest amounts, reimbursement of Realized
Losses and Additional Trust Fund Expenses and timing of distributions on
each REMIC I Regular Interest will be identical to such amounts,
reimbursements and timing on the related Corresponding Certificates
(including, for this purpose, the Class A-2FL Regular Interest and
excluding the Class A-2FL Certificates and including, for this purpose,
the Class A-JFL Regular Interest and excluding the Class A-JFL
Certificates); except that, solely for this purpose, all calculations of
interest with respect to the Corresponding REMIC I Regular Interests shall
be made as though the Class A-1 Certificate, Class A-2 Certificate, Class
A-2FL Regular Interest, Class A-3 Certificate, Class A-AB Certificate,
Class A-4 Certificate, Class A-1A Certificate, Class A-M Certificate,
Class A-J Certificate, Class A-JFL Regular Interest, Class B Certificate,
Class C Certificate, Class D Certificate, Class E Certificate, Class F
Certificate, Class G Certificate, Class H Certificate, Class J
Certificate, Class K Certificate, Class L Certificate, Class M
Certificate, Class N Certificate, Class O Certificate, Class P
Certificate, Class Q Certificate and Class S Certificate Pass-Through
Rates were equal to the Weighted Average Adjusted Net Mortgage Rate and as
though the Class XW Notional Amount were zero at all times and such that
the amounts and timing of interest distributions on each Corresponding
REMIC I Regular Interest represent the aggregate of the corresponding
amounts on each Class of Corresponding Certificates and its related
Component of the Class XW Certificates; provided that (A) interest shall
be deemed distributed on such REMIC I Regular Interest only in the same
priority and to the extent actually distributable on such related Class of
Corresponding Certificates or related Component and (B) interest
distributable on the Class XW Certificates shall be distributable pro rata
among the related Components.
(iii) Any amount that remains in the REMIC I Distribution Account on
each Distribution Date after distribution of the REMIC I Distribution
Amount and Prepayment Premiums allocable to the REMIC I Regular Interests
pursuant to Section 4.01(c)(iv) shall be distributed to the Holders of the
Class R-I Certificates (but only to the extent of the Available
Distribution Amount for such Distribution Date remaining in the REMIC I
Distribution Account, if any).
(b) On each Distribution Date, to the extent of the Available
Distribution Amount for such Distribution Date, the Trustee shall transfer or be
deemed to transfer the REMIC I Distribution Amount from the REMIC I Distribution
Account to the REMIC II Distribution Account in the amounts set forth in Section
4.01(a)(ii) with respect to each Class of REMIC I Regular Interest, and
immediately thereafter, shall make distributions thereof from the REMIC II
Distribution Account to the REMIC II Certificates and to the Class A-2FL and
Class A-JFL Floating Rate Accounts in respect of the Class A-2FL and Class A-JFL
Regular Interests in the order of priority set forth in clauses (i) through
(lvii) immediately below, satisfying in full, to the extent required and
possible, each priority before making any distribution with respect to any
succeeding priority.
(i) concurrently, (a) from the Loan Group 1 Available Distribution
Amount, to distributions of interest to the Holders of the Class A-1
Certificates, Class A-2 Certificates, Class A-2FL Regular Interest, Class
A-3 Certificates, Class A-AB Certificates and Class A-4 Certificates, pro
rata, as among such Classes in accordance with, all Distributable
Certificate Interest in respect of each such Class of Certificates for
such Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates, if any; (b) from the Loan Group 2 Available
Distribution Amount, distributions of interest to the Holders of the Class
A-1A Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior distribution
dates, if any; and (c) from the Loan Group 1 Available Distribution Amount
and/or the Loan Group 2 Available Distribution Amount, distributions of
interest to the Holders of the Class XW Certificates, up to an amount
equal to all Distributable Certificate Interest in respect of such Class
of Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates, if any; provided,
however, if the Loan Group 1 Available Distribution Amount and/or the Loan
Group 2 Available Distribution Amount is insufficient to pay in full the
total amount of Distributable Certificate Interest, as provided above,
payable in respect of any Class of Senior Certificates on such
Distribution Date, then the entire Available Distribution Amount shall be
applied to make distributions of interest to the Holders of the Class A-1
Certificates, Class A-2 Certificates, Class A-2FL Regular Interest, Class
A-3 Certificates, Class A-AB Certificates, Class A-4 Certificates, Class
A-1A Certificates and Class XW Certificates without regard to Loan Group,
up to an amount equal to, and pro rata as among such Classes in accordance
with, all Distributable Certificate Interest in respect of each such Class
of Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates, if any;
(ii) to distributions of principal to the Holders of the Class A-1
Certificates, Class A-2 Certificates, Class A-2FL Regular Interest, Class
A-3 Certificates, Class A-AB Certificates, Class A-4 Certificates and
Class A-1A Certificates in reduction of the Class Principal Balances
thereof concurrently (A)(1) first, to the Holders of the Class A-AB
Certificates, in an amount up to the Loan Group 1 Principal Distribution
Amount and, after the outstanding Class Principal Balance of the Class
A-1A Certificates has been reduced to zero, the Loan Group 2 Principal
Distribution Amount remaining after payments to Holders of the Class A-1A
Certificates have been made on such Distribution Date, until the
outstanding Class Principal Balance of the Class A-AB Certificates has
been reduced to the Class A-AB Planned Principal Amount; (2) second, to
the Holders of the Class A-1 Certificates, in an amount up to the Loan
Group 1 Principal Distribution Amount and, after the outstanding Class
Principal Balance of the Class A-1A Certificates has been reduced to zero,
the Loan Group 2 Principal Distribution Amount remaining after payments to
Holders of the Class A-1A Certificates and the Holders of the Class A-AB
Certificates (up to the Class A-AB Planned Principal Amount) have been
made on such Distribution Date, until the outstanding Class Principal
Balance of the Class A-1 Certificates has been reduced to zero; (3) third,
to the Holders of the Class A-2 Certificates and the Class A-2FL Regular
Interest, pro rata, in an amount up to the Loan Group 1 Principal
Distribution Amount and, after the outstanding Class Principal Balance of
the Class A-1A Certificates has been reduced to zero, the Loan Group 2
Principal Distribution Amount remaining after payments to Holders of the
Class A-1A Certificates and the Holders of the Class A-AB Certificates (up
to the Class A-AB Planned Principal Amount) and the Class A-1 Certificates
have been made on such Distribution Date, until the outstanding Class
Principal Balances of the Class A-2 Certificates and the Class A-2FL
Regular Interest have been reduced to zero; (4) fourth, to the Holders of
the Class A-3 Certificates, in an amount up to the Loan Group 1 Principal
Distribution Amount and, after the outstanding Class Principal Balance of
the Class A-1A Certificates has been reduced to zero, the Loan Group 2
Principal Distribution Amount remaining after payments to Holders of the
Class A-1A Certificates and the Holders of the Class A-AB Certificates (up
to the Class A-AB Planned Principal Amount) and the Class A-1
Certificates, Class A-2 Certificates and Class A-2FL Regular Interest have
been made on such Distribution Date, until the outstanding Class Principal
Balance of the Class A-3 Certificates has been reduced to zero; (5) fifth,
to the Holders of the Class A-AB Certificates, in an amount up to the Loan
Group 1 Principal Distribution Amount and, after the outstanding Class
Principal Balance of the Class A-1A Certificates has been reduced to zero,
the Loan Group 2 Principal Distribution Amount remaining after payments to
Holders of the Class A-1A Certificates and the Holders of the Class A-AB
Certificates (up to the Class A-AB Planned Principal Amount) and the Class
A-1 Certificates, Class A-2 Certificates, Class A-2FL Regular Interest and
Class A-3 Certificates have been made on such Distribution Date, until the
outstanding Class Principal Balance of the Class A-AB Certificates has
been reduced to zero; and (6) sixth, to the Holders of the Class A-4
Certificates, in an amount up to the Loan Group 1 Principal Distribution
Amount and, after the outstanding Class Principal Balance of the Class
A-1A Certificates has been reduced to zero, the Loan Group 2 Principal
Distribution Amount remaining after payments to Holders of the Class A-1A
Certificates, Class A-1 Certificates, Class A-2 Certificates, Class A-2FL
Regular Interest, Class A-3 Certificates and Class A-AB Certificates have
been made on such Distribution Date, until the Class Principal Balance of
the Class A-4 Certificates has been reduced to zero; and (B) to the
Holders of the Class A-1A Certificates, in an amount up to the Loan Group
2 Principal Distribution Amount and, after the outstanding Class Principal
Balance of the Class A-1 Certificates, Class A-2 Certificates, Class A-2FL
Regular Interest, Class A-3 Certificates, Class A-AB Certificates and
Class A-4 Certificates have been reduced to zero, the Loan Group 1
Principal Distribution Amount remaining after payments to Holders of the
Class A-1A Certificates, Class A-1 Certificates, Class A-2 Certificates,
Class A-2FL Regular Interest, Class A-3 Certificates, Class A-AB
Certificates and Class A-4 Certificates have been made on such
Distribution Date, until the Class Principal Balance of the Class A-1A
Certificates has been reduced to zero;
(iii) to reimburse the Holders of the Class A-1 Certificates, Class
A-2 Certificates, Class A-2FL Regular Interest, Class A-3 Certificates,
Class A-AB Certificates, Class A-4 Certificates and Class A-1A
Certificates, up to an amount equal to, and pro rata as among such Classes
in accordance with, the respective amounts of Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
Principal Balance of such Classes and for which no reimbursement has
previously been paid;
(iv) to distributions of interest to the Holders of the Class A-M
Certificates in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(v) if the Class Principal Balances of the Class A-1 Certificates,
Class A-2 Certificates, Class A-2FL Regular Interest, Class A-3
Certificates, Class A-AB Certificates, Class A-4 Certificates and Class
A-1A Certificates have been reduced to zero, to distributions of principal
to the Holders of the Class A-M Certificates, in an amount (not to exceed
the Class Principal Balance of the Class A-M Certificates outstanding
immediately prior to such Distribution Date) equal to the entire remaining
Principal Distribution Amount for such Distribution Date;
(vi) to distributions to the Holders of the Class A-M Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class A-M Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(vii) to distributions of interest to the Holders of the Class A-J
Certificates and Class A-JFL Regular Interest, pro rata, in an amount
equal to all Distributable Certificate Interest in respect of such Class
of Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(viii) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-2FL Regular Interest, Class
A-3 Certificates, Class A-AB Certificates, Class A-4 Certificates, Class
A-1A Certificates and Class A-M Certificates have been reduced to zero, to
distributions of principal to the Holders of the Class A-J Certificates
and Class A-JFL Regular Interest, pro rata, in an amount (not to exceed
the Class Principal Balances of the Class A-J Certificates and Class A-JFL
Regular Interest outstanding immediately prior to such Distribution Date)
equal to the entire remaining Principal Distribution Amount for such
Distribution Date;
(ix) to distributions to the Holders of the Class A-J Certificates
and Class A-JFL Regular Interest, pro rata, in an amount equal to, and in
reimbursement of, all Realized Losses and Additional Trust Fund Expenses,
if any, that were previously allocated to the Class Principal Balances of
the Class A-J Certificates and Class A-JFL Regular Interest and that
remain unreimbursed immediately prior to such Distribution Date;
(x) to distributions of interest to the Holders of the Class B
Certificates in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xi) if the Class Principal Balances of the Class A-1 Certificates,
Class A-2 Certificates, Class A-2FL Regular Interest, Class A-3
Certificates, Class A-AB Certificates, Class A-4 Certificates, Class A-1A
Certificates, Class A-M Certificates, Class A-J Certificates and Class
A-JFL Regular Interest have been reduced to zero, to distributions of
principal to the Holders of the Class B Certificates, in an amount (not to
exceed the Class Principal Balance of the Class B Certificates outstanding
immediately prior to such Distribution Date) equal to the entire remaining
Principal Distribution Amount for such Distribution Date;
(xii) to distributions to the Holders of the Class B Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class B Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xiii) to distributions of interest to the Holders of the Class C
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xiv) if the Class Principal Balances of the Class A-1 Certificates,
Class A-2 Certificates, Class A-2FL Regular Interest, Class A-3
Certificates, Class A-AB Certificates, Class A-4 Certificates, Class A-1A
Certificates, Class A-M Certificates, Class A-J Certificates, Class A-JFL
Regular Interest and Class B Certificates have been reduced to zero, to
distributions of principal to the Holders of the Class C Certificates, in
an amount (not to exceed the Class Principal Balance of the Class C
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire remaining Principal Distribution Amount for such
Distribution Date;
(xv) to distributions to the Holders of the Class C Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class C Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xvi) to distributions of interest to the Holders of the Class D
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xvii) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-2FL Regular Interest, Class
A-3 Certificates, Class A-AB Certificates, Class A-4 Certificates, Class
A-1A Certificates, Class A-M Certificates, Class A-J Certificates, Class
A-JFL Regular Interest, Class B Certificates and Class C Certificates have
been reduced to zero, to distributions of principal to the Holders of the
Class D Certificates, in an amount (not to exceed the Class Principal
Balance of the Class D Certificates outstanding immediately prior to such
Distribution Date) equal to the entire remaining Principal Distribution
Amount for such Distribution Date;
(xviii) to distributions to the Holders of the Class D Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class D Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xix) to distributions of interest to the Holders of the Class E
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xx) if the Class Principal Balances of the Class A-1 Certificates,
Class A-2 Certificates, Class A-2FL Regular Interest, Class A-3
Certificates, Class A-AB Certificates, Class A-4 Certificates, Class A-1A
Certificates, Class A-M Certificates, Class A-J Certificates, Class A-JFL
Regular Interest, Class B Certificates, Class C Certificates and Class D
Certificates have been reduced to zero, to distributions of principal to
the Holders of the Class E Certificates, in an amount (not to exceed the
Class Principal Balance of the Class E Certificates outstanding
immediately prior to such Distribution Date) equal to the entire remaining
Principal Distribution Amount for such Distribution Date;
(xxi) to distributions to the Holders of the Class E Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class E Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xxii) to distributions of interest to the Holders of the Class F
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xxiii) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-2FL Regular Interest, Class
A-3 Certificates, Class A-AB Certificates, Class A-4 Certificates, Class
A-1A Certificates, Class A-M Certificates, Class A-J Certificates, Class
A-JFL Regular Interest, Class B Certificates, Class C Certificates, Class
D Certificates and Class E Certificates have been reduced to zero, to
distributions of principal to the Holders of the Class F Certificates, in
an amount (not to exceed the Class Principal Balance of the Class F
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire remaining Principal Distribution Amount for such
Distribution Date;
(xxiv) to distributions to the Holders of the Class F Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class F Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xxv) to distributions of interest to the Holders of the Class G
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xxvi) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-2FL Regular Interest, Class
A-3 Certificates, Class A-AB Certificates, Class A-4 Certificates, Class
A-1A Certificates, Class A-M Certificates, Class A-J Certificates, Class
A-JFL Regular Interest, Class B Certificates, Class C Certificates, Class
D Certificates, Class E Certificates and Class F Certificates have been
reduced to zero, to distributions of principal to the Holders of the Class
G Certificates, in an amount (not to exceed the Class Principal Balance of
the Class G Certificates outstanding immediately prior to such
Distribution Date) equal to the entire remaining Principal Distribution
Amount for such Distribution Date;
(xxvii) to distributions to the Holders of the Class G Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class G Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xxviii) to distributions of interest to the Holders of the Class H
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xxix) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-2FL Regular Interest, Class
A-3 Certificates, Class A-AB Certificates, Class A-4 Certificates, Class
A-1A Certificates, Class A-M Certificates, Class A-J Certificates, Class
A-JFL Regular Interest, Class B Certificates, Class C Certificates, Class
D Certificates, Class E Certificates, Class F Certificates and Class G
Certificates have been reduced to zero, to distributions of principal to
the Holders of the Class H Certificates, in an amount (not to exceed the
Class Principal Balance of the Class H Certificates outstanding
immediately prior to such Distribution Date) equal to the entire remaining
Principal Distribution Amount for such Distribution Date;
(xxx) to distributions to the Holders of the Class H Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class H Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xxxi) to distributions of interest to the Holders of the Class J
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xxxii) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-2FL Regular Interest, Class
A-3 Certificates, Class A-AB Certificates, Class A-4 Certificates, Class
A-1A Certificates, Class A-M Certificates, Class A-J Certificates, Class
A-JFL Regular Interest, Class B Certificates, Class C Certificates, Class
D Certificates, Class E Certificates, Class F Certificates, Class G
Certificates and Class H Certificates have been reduced to zero, to
distributions of principal to the Holders of the Class J Certificates, in
an amount (not to exceed the Class Principal Balances of the Class J
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire remaining Principal Distribution Amount for such
Distribution Date;
(xxxiii) to distributions to the Holders of the Class J
Certificates, in an amount equal to, and in reimbursement of, all Realized
Losses and Additional Trust Fund Expenses, if any, that were previously
allocated to the Class Principal Balances of the Class J Certificates and
that remain unreimbursed immediately prior to such Distribution Date;
(xxxiv) to distributions of interest to the Holders of the Class K
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xxxv) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-2FL Regular Interest, Class
A-3 Certificates, Class A-AB Certificates, Class A-4 Certificates, Class
A-1A Certificates, Class A-M Certificates, Class A-J Certificates, Class
A-JFL Regular Interest, Class B Certificates, Class C Certificates, Class
D Certificates, Class E Certificates, Class F Certificates, Class G
Certificates, Class H Certificates and Class J Certificates have been
reduced to zero, to distributions of principal to the Holders of the Class
K Certificates, in an amount (not to exceed the Class Principal Balance of
the Class K Certificates outstanding immediately prior to such
Distribution Date) equal to the entire remaining Principal Distribution
Amount for such Distribution Date;
(xxxvi) to distributions to the Holders of the Class K Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class K Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xxxvii) to distributions of interest to the Holders of the Class L
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xxxviii) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-2FL Regular Interest, Class
A-3 Certificates, Class A-AB Certificates, Class A-4 Certificates, Class
A-1A Certificates, Class A-M Certificates, Class A-J Certificates, Class
A-JFL Regular Interest, Class B Certificates, Class C Certificates, Class
D Certificates, Class E Certificates, Class F Certificates, Class G
Certificates, Class H Certificates, Class J Certificates and Class K
Certificates have been reduced to zero, to distributions of principal to
the Holders of the Class L Certificates, in an amount (not to exceed the
Class Principal Balance of the Class L Certificates outstanding
immediately prior to such Distribution Date) equal to the entire remaining
Principal Distribution Amount for such Distribution Date;
(xxxix) to distributions to the Holders of the Class L Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class L Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xl) to distributions of interest to the Holders of the Class M
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xli) if the Class Principal Balances of the Class A-1 Certificates,
Class A-2 Certificates, Class A-2FL Regular Interest, Class A-3
Certificates, Class A-AB Certificates, Class A-4 Certificates, Class A-1A
Certificates, Class A-M Certificates, Class A-J Certificates, Class A-JFL
Regular Interest, Class B Certificates, Class C Certificates, Class D
Certificates, Class E Certificates, Class F Certificates, Class G
Certificates, Class H Certificates, Class J Certificates, Class K
Certificates and Class L Certificates have been reduced to zero, to
distributions of principal to the Holders of the Class M Certificates, in
an amount (not to exceed the Class Principal Balance of the Class M
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire remaining Principal Distribution Amount for such
Distribution Date;
(xlii) to distributions to the Holders of the Class M Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class M Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xliii) to distributions of interest to the Holders of the Class N
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xliv) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-2FL Regular Interest, Class
A-3 Certificates, Class A-AB Certificates, Class A-4 Certificates, Class
A-1A Certificates, Class A-M Certificates, Class A-J Certificates, Class
A-JFL Regular Interest, Class B Certificates, Class C Certificates, Class
D Certificates, Class E Certificates, Class F Certificates, Class G
Certificates, Class H Certificates, Class J Certificates, Class K
Certificates, Class L Certificates and Class M Certificates have been
reduced to zero, to distributions of principal to the Holders of the Class
N Certificates, in an amount (not to exceed the Class Principal Balance of
the Class N Certificates outstanding immediately prior to such
Distribution Date) equal to the entire remaining Principal Distribution
Amount for such Distribution Date;
(xlv) to distributions to the Holders of the Class N Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class N Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xlvi) to distributions of interest to the Holders of the Class O
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xlvii) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-2FL Regular Interest, Class
A-3 Certificates, Class A-AB Certificates, Class A-4 Certificates, Class
A-1A Certificates, Class A-M Certificates, Class A-J Certificates, Class
A-JFL Regular Interest, Class B Certificates, Class C Certificates, Class
D Certificates, Class E Certificates, Class F Certificates, Class G
Certificates, Class H Certificates, Class J Certificates, Class K
Certificates, Class L Certificates, Class M Certificates and Class N
Certificates have been reduced to zero, to distributions of principal to
the Holders of the Class O Certificates, in an amount (not to exceed the
Class Principal Balance of the Class O Certificates outstanding
immediately prior to such Distribution Date) equal to the entire remaining
Principal Distribution Amount for such Distribution Date;
(xlviii) to distributions to the Holders of the Class O
Certificates, in an amount equal to, and in reimbursement of, all Realized
Losses and Additional Trust Fund Expenses, if any, that were previously
allocated to the Class Principal Balance of the Class O Certificates and
that remain unreimbursed immediately prior to such Distribution Date;
(xlix) to distributions of interest to the Holders of the Class P
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(l) if the Class Principal Balances of the Class A-1 Certificates,
Class A-2 Certificates, Class A-2FL Regular Interest, Class A-3
Certificates, Class A-AB Certificates, Class A-4 Certificates, Class A-1A
Certificates, Class A-M Certificates, Class A-J Certificates, Class A-JFL
Regular Interest, Class B Certificates, Class C Certificates, Class D
Certificates, Class E Certificates, Class F Certificates, Class G
Certificates, Class H Certificates, Class J Certificates, Class K
Certificates, Class L Certificates, Class M Certificates, Class N
Certificates and Class O Certificates have been reduced to zero, to
distributions of principal to the Holders of the Class P Certificates, in
an amount (not to exceed the Class Principal Balance of the Class P
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire remaining Principal Distribution Amount for such
Distribution Date;
(li) to distributions to the Holders of the Class P Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class P Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(lii) to distributions of interest to the Holders of the Class Q
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(liii) if the Class Principal Balances of the Class A-1
Certificates, Class A-2 Certificates, Class A-2FL Regular Interest, Class
A-3 Certificates, Class A-AB Certificates, Class A-4 Certificates, Class
A-1A Certificates, Class A-M Certificates, Class A-J Certificates, Class
A-JFL Regular Interest, Class B Certificates, Class C Certificates, Class
D Certificates, Class E Certificates, Class F Certificates, Class G
Certificates, Class H Certificates, Class J Certificates, Class K
Certificates, Class L Certificates, Class M Certificates, Class N
Certificates, Class O Certificates and Class P Certificates have been
reduced to zero, to distributions of principal to the Holders of the Class
Q Certificates, in an amount (not to exceed the Class Principal Balance of
the Class Q Certificates outstanding immediately prior to such
Distribution Date) equal to the entire remaining Principal Distribution
Amount for such Distribution Date;
(liv) to distributions to the Holders of the Class Q Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class Q Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(lv) to distributions of interest to the Holders of the Class S
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(lvi) if the Class Principal Balances of the Class A-1 Certificates,
Class A-2 Certificates, Class A-2FL Regular Interest, Class A-3
Certificates, Class A-AB Certificates, Class A-4 Certificates, Class A-1A
Certificates, Class A-M Certificates, Class A-J Certificates, Class A-JFL
Regular Interest, Class B Certificates, Class C Certificates, Class D
Certificates, Class E Certificates, Class F Certificates, Class G
Certificates, Class H Certificates, Class J Certificates, Class K
Certificates, Class L Certificates, Class M Certificates, Class N
Certificates, Class O Certificates, Class P Certificates and Class Q
Certificates have been reduced to zero, to distributions of principal to
the Holders of the Class S Certificates, in an amount (not to exceed the
Class Principal Balance of the Class S Certificates outstanding
immediately prior to such Distribution Date) equal to the entire remaining
Principal Distribution Amount for such Distribution Date;
(lvii) to distributions to the Holders of the Class S Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class S Certificates and that remain
unreimbursed immediately prior to such Distribution Date; and
(lviii) to distributions to the Holders of the Class R-II
Certificates, in the amount remaining in the REMIC II Distribution Account
for such Distribution Date remaining after the distributions to be made on
such Distribution Date pursuant to clauses (i) through (lviii) of this
Section 4.01(b);
provided that, on each Distribution Date coinciding with or following the Senior
Principal Distribution Cross Over Date, and in any event on the Final
Distribution Date, the payments of principal to be made pursuant to clause (ii)
of this Section 4.01(b), will be so made to the Holders of the Class A-1, Class
X-0, Xxxxx X-0, Class A-AB, Class A-4 and Class A-1A Certificates and the Class
A-2FL Regular Interest, subject to available funds, up to an amount equal to,
and pro rata as among such Classes in accordance with, the respective then
outstanding Class Principal Balances of such Classes, and without regard to the
Principal Distribution Amount for such date; and provided, further, on the Final
Distribution Date, the payments of principal to be made pursuant to any of
clauses (v), (viii), (xi), (xiv), (xvii), (xx), (xxiii), (xxvi), (xxix),
(xxxii), (xxxv), (xxxviii), (xli), (xliv), (xlvii), (l), (liii) and (lvi) of
this Section 4.01(b) with respect to any Class of Sequential Pay Certificates
and the Class A-2FL and Class A-JFL Regular Interests, will be so made to the
Holders thereof, subject to available funds, up to an amount equal to the entire
then outstanding Class Principal Balance of such Class of Certificates or the
Class A-2FL or Class A-JFL Regular Interest, and without regard to the Principal
Distribution Amount for such date. References to "remaining Principal
Distribution Amount" in clause (ii) of this Section 4.01(b), in connection with
payments of principal to be made to the Holders of the Class A-1, Class X-0,
Xxxxx X-0, Class A-AB, Class A-4 and Class A-1A Certificates and the Class A-2FL
Regular Interest shall be to the Principal Distribution Amount for such
Distribution Date, net of any distributions of principal made in respect thereof
to the Holders of each other Class of Class A Certificates (other than the Class
A-2FL Certificates) and the Class A-2FL Regular Interest, if any, that pursuant
to clause (ii) of this Section 4.01(b) has an earlier right to payment with
respect thereto. References to "remaining Principal Distribution Amount" in any
of clauses (v), (viii), (xi), (xiv), (xvii), (xx), (xxiii), (xxvi), (xxix),
(xxxii), (xxxv), (xxxviii), (xli), (xliv), (xlvii), (l), (liii) and (lvi) of
this Section 4.01(b), in connection with the payments of principal to be made to
the Holders of any Class of Sequential Pay Certificates and the Class A-2FL and
Class A-JFL Regular Interests, shall be to the Principal Distribution Amount for
such Distribution Date, net of any payments of principal made in respect thereof
to the Holders of each other Class of Sequential Pay Certificates and the Class
A-2FL and Class A-JFL Regular Interests that has a higher Payment Priority.
All distributions of interest made in respect of the Class XW
Certificates on any Distribution Date pursuant to clause (i) above, shall be
deemed to have been made in respect of all the Components of such Class, pro
rata in accordance with the respective amounts of interest that would be payable
on such Components on such Distribution Date based on the Class XW Strip Rate of
such Component multiplied by its Component Notional Amount, less an allocable
portion of any Prepayment Interest Shortfall, together with any amounts thereof
remaining unpaid from previous Distribution Dates.
(c) (i) Loan Group 1.? On each Distribution Date, Prepayment
Premiums collected on the Mortgage Loans in Loan Group 1 during the related
Prepayment Period will be distributed by the Trustee to the Class A-1
Certificates, Class A-2 Certificates, Class A-2FL Regular Interest, Class A-3
Certificates, Class A-AB Certificates, Class A-4 Certificates, Class A-M
Certificates, Class A-J Certificates, Class A-JFL Regular Interest, Class B
Certificates, Class C Certificates, Class D Certificates, Class E Certificates,
Class F Certificates, Class G Certificates, Class H Certificates, Class J
Certificates and Class K Certificates, in an amount equal to the product of: (i)
a fraction, not greater than one, whose numerator is the amount distributed as
principal to such Class on such Distribution Date, and whose denominator is the
total amount distributed as principal to the Class A-1 Certificates, Class A-2
Certificates, Class A-2FL Regular Interest, Class A-3 Certificates, Class A-AB
Certificates, Class A-4 Certificates, Class A-M Certificates, Class A-J
Certificates, Class A-JFL Regular Interest, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F Certificates,
Class G Certificates, Class H Certificates, Class J Certificates, Class K
Certificates, Class L Certificates, Class M Certificates, Class N Certificates,
Class O Certificates, Class P Certificates, Class Q Certificates and Class S
Certificates on such Distribution Date, (ii) the Base Interest Fraction for the
related principal payment on such Class of Certificates, and (iii) the amount of
Prepayment Premiums collected on such principal prepayment during the related
Prepayment Period. However, the amount of Prepayment Premiums so distributed to
the Class A-1 Certificates, Class A-2 Certificates, Class A-2FL Regular
Interest, Class A-3 Certificates, Class A-AB Certificates, Class A-4
Certificates, Class A-M Certificates, Class A-J Certificates, Class A-JFL
Regular Interest, Class B Certificates, Class C Certificates, Class D
Certificates, Class E Certificates, Class F Certificates, Class G Certificates,
Class H Certificates, Class J Certificates and Class K Certificates in
accordance with the preceding sentence will not exceed the amount of Prepayment
Premiums collected on the Mortgage Loans in Loan Group 1 during such Prepayment
Period. Any Prepayment Premiums collected during the related Prepayment Period
remaining after such distributions will be distributed to the holders of the
Class XW Certificates. No Prepayment Premiums in respect of Mortgage Loans
included in Loan Group 1 will be distributed to holders of any other Class of
Certificates.
(ii) Loan Group 2.? On each Distribution Date, Prepayment Premiums
collected on the Mortgage Loans included in Loan Group 2 during the
related Prepayment Period will be required to be distributed by the
Trustee to the holders of the Class A-1A Certificates in an amount equal
to the product of: (a) a fraction, not greater than one, whose numerator
is the amount of principal distributed to such Class on such Distribution
Date and whose denominator is the total amount of principal payments
received in respect of such Distribution Date for all Mortgage Loans
included in Loan Group 2 on such Distribution Date, (b) the Base Interest
Fraction for the related principal prepayment and such Class of
Certificates and (c) the amount of Prepayment Premiums collected on such
principal prepayment during the related Prepayment Period. However, the
amount of Prepayment Premiums so distributed to the Class A-1A
Certificates in accordance with the preceding sentence will not exceed the
amount of Prepayment Premiums collected on the Mortgage Loans in Loan
Group 2 during such Prepayment Period. Any Prepayment Premiums collected
during the related Prepayment Period remaining after such distributions
will be distributed to the holders of the Class XW Certificates. No
Prepayment Premiums in respect of Mortgage Loans included in Loan Group 2
will be distributed to holders of any other Class of Certificates.
(iii) Other Aspects.? No Prepayment Premiums will be distributed to
the holders of the Class L Certificates, Class M Certificates, Class N
Certificates, Class O Certificates, Class P Certificates, Class Q
Certificates, Class S Certificates, Class V Certificates, Class R-I
Certificates or Class R-II Certificates. Instead, after the Certificate
Balances of the Class A-1 Certificates, Class A-2 Certificates, Class
A-2FL Regular Interest, Class A-3 Certificates, Class A-AB Certificates,
Class A-4 Certificates, Class A-1A Certificates, Class A-M Certificates,
Class A-J Certificates, Class A-JFL Regular Interest, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates, Class F Certificates, Class G Certificates, Class H
Certificates, Class J Certificates and Class K Certificates have been
reduced to zero, all Prepayment Premiums with respect to the Mortgage
Loans will be distributed to the holders of the Class XW Certificates. No
Prepayment Premiums in respect of Mortgage Loans included in Loan Group 1
and Loan Group 2 will be distributed to holders of any other Class of
Certificates. Prepayment Premiums will be distributed on any Distribution
Date only to the extent they are received in respect of the Mortgage Loans
in the related Prepayment Period.
(iv) All distributions of Prepayment Premiums made in respect of the
respective Classes of REMIC II Certificates and the Class A-2FL and Class
A-JFL Regular Interests on each Distribution Date pursuant to Sections
4.01(c)(i) and 4.01(c)(ii) shall first be deemed to be distributed from
REMIC I to REMIC II in respect of the REMIC I Regular Interests pro rata
based upon the amount of principal distributed in respect of each Class of
REMIC I Regular Interest for such Distribution Date pursuant to Sections
4.01(c)(i) and 4.01(c)(ii).
(d) All distributions made with respect to each Class on each
Distribution Date shall be allocated pro rata among the outstanding Certificates
in such Class based on their respective Percentage Interests. Except as
otherwise provided below, all such distributions with respect to each Class of
Certificates on each Distribution Date shall be made to the Certificateholders
of the respective Class of record at the close of business on the related Record
Date and shall be made by wire transfer of immediately available funds to the
account of any such Certificateholder at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with written wiring instructions no less than five Business Days
prior to the related Record Date (which wiring instructions may be in the form
of a standing order applicable to all subsequent Distribution Dates), or
otherwise by check mailed to the address of such Certificateholder as it appears
in the Certificate Register. The final distribution on each Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to such Certificate)
will be made in like manner, but only upon presentation and surrender of such
Certificate at the Corporate Trust Office or such other location specified in
the notice to Certificateholders of such final distribution. Any distribution
that is to be made with respect to a Certificate in reimbursement of a Realized
Loss or Additional Trust Fund Expense previously allocated thereto, which
reimbursement is to occur after the date on which such Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Certificateholder that surrendered such Certificate
as such address last appeared in the Certificate Register or to any other
address of which the Trustee was subsequently notified in writing.
(e) Each distribution with respect to a Book-Entry Certificate shall
be paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Trustee, the
Certificate Registrar, the Depositor, the Master Servicer, the Special Servicer
or the REMIC Administrator shall have any responsibility therefor except as
otherwise provided by this Agreement or applicable law.
(f) The rights of the Certificateholders to receive distributions
from the proceeds of the Trust Fund in respect of their Certificates, and all
rights and interests of the Certificateholders in and to such distributions,
shall be as set forth in this Agreement. Neither the Holders of any Class of
Certificates nor any party hereto shall in any way be responsible or liable to
the Holders of any other Class of Certificates in respect of amounts properly
previously distributed on the Certificates. Distributions in reimbursement of
Realized Losses and Additional Trust Fund Expenses previously allocated to a
Class of Certificates shall not constitute distributions of principal and shall
not result in a reduction of the related Class Principal Balance.
(g) Except as otherwise provided in Section 9.01, whenever the
Trustee expects that the final distribution with respect to any Class of
Certificates (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to such
Class of Certificates) will be made on the next Distribution Date, the Trustee
shall, as soon as practicable in the month in which such Distribution Date
occurs, mail to each Holder of such Class of Certificates as of the date of
mailing a notice to the effect that:
(i) the Trustee expects that the final distribution with respect to
such Class of Certificates will be made on such Distribution Date but only
upon presentation and surrender of such Certificates at the Corporate
Trust Office or such other location therein specified, and
(ii) no interest shall accrue on such Certificates from and after
such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates
of such Class on such Distribution Date because of the failure of such Holder or
Holders to tender their Certificates shall, on such date, be set aside and held
uninvested in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(g) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice all such Certificates shall not have been surrendered for cancellation,
the Trustee, directly or through an agent, shall take such steps to contact the
remaining non-tendering Certificateholders concerning the surrender of their
Certificates as it shall deem appropriate. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders following the
first anniversary of the delivery of such second notice to the non-tendering
Certificateholders shall be paid out of such funds. No interest shall accrue or
be payable to any Certificateholder on any amount held in trust hereunder by the
Trustee as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with this Section
4.01(g). If all of the Certificates shall not have been surrendered for
cancellation by the second anniversary of the delivery of the second notice, the
Trustee shall distribute to the Class R-II Certificateholders all unclaimed
funds and other assets that remain subject hereto.
(h) Notwithstanding any other provision of this Agreement, the
Trustee shall comply with all federal withholding requirements respecting
payments made or received under the Class A-2FL Swap Contract or the Class A-JFL
Swap Contract, as applicable, and payments to Certificateholders of interest or
original issue discount that the Trustee reasonably believes are applicable
under the Code taking into account any applicable exemptions from, or reductions
in, withholding upon receipt of appropriate IRS forms and documentation. The
consent of Certificateholders shall not be required for such withholding. In the
event the Trustee does withhold any amount from interest or original issue
discount payments or advances thereof to any Certificateholder pursuant to
federal withholding requirements, the Trustee shall indicate the amount withheld
to such Certificateholders. Such amounts shall be deemed to have been
distributed to such Certificateholders for all purposes of this Agreement.
(i) On each Distribution Date, any Excess Interest received during
the related Collection Period with respect to the Mortgage Loans shall be
withdrawn by the Trustee from the Excess Interest Distribution Account and
distributed by the Trustee to the Holders of the Class V Certificates.
(j) On the final Master Servicer Remittance Date, the Master
Servicer shall withdraw from the Certificate Account and deliver to the REMIC
Administrator who shall distribute to the Holders of the Class R-I Certificates,
any Loss of Value Payments transferred from the Loss of Value Reserve Fund to
the Certificate Account on the immediately preceding Master Servicer Remittance
Date in accordance with Section 3.05(a), to the extent not otherwise included in
the Available Distribution Amount for the final Distribution Date.
(k) On each Distribution Date, to the extent of the Class A-2FL
Available Funds for such Distribution Date, the Trustee shall make distributions
from the Class A-2FL Floating Rate Account in the following order of priority,
satisfying in full, to the extent required and possible, each priority before
making any distribution with respect to any succeeding priority:
(A) first, to the Holders of the Class A-2FL Certificates in
respect of interest, up to an amount equal to the Class A-2FL
Interest Distribution Amount, for such Distribution Date;
(B) second, to the Holders of the Class A-2FL Certificates in
reduction of the Certificate Balances thereof, an amount equal to
the Class A-2FL Principal Distribution Amount until the outstanding
Certificate Balance thereof has been reduced to zero;
(C) third, to the Holders of the Class A-2FL Certificates
until all Realized Losses and Additional Trust Fund Expenses
previously allocated to the Class A-2FL Certificates (as a result of
the allocation of Realized Losses and Additional Trust Fund Expenses
to the Class A-2FL Regular Interest) but not previously reimbursed,
have been reimbursed in full; and
(D) fourth, to pay termination payments, if any, to the A-2FL
Swap Counterparty; and
(E) fifth, any remaining amount to the Holders of the Class
A-2FL Certificates.
(l) So long as a Class A-2FL Distribution Conversion is not in
effect, any Prepayment Premiums paid on the Class A-2FL Regular Interest shall
be payable to the Class A-2FL Swap Counterparty pursuant to the terms of the
Class A-2FL Swap Contract on a net basis as part of the Class A-2FL Net Swap
Payment specified in Section 3.33. On each Distribution Date for which a Class
A-2FL Distribution Conversion is in effect, any Prepayment Premium paid on the
Class A-2FL Regular Interest shall be distributed to the Holders of the Class
A-2FL Certificates. Any termination payments due to the Class A-2FL Swap
Counterparty under the Class A-2FL Swap Contract shall be payable solely from
(i) amounts, if any, remaining in the Class A-2FL Floating Rate Account after
all other amounts have been paid to the Class A-2FL Regular Interest (including
all principal amounts outstanding) and to the Class A-2FL Certificates pursuant
to Section 4.01 and (ii) to the extent of any payment made by a replacement swap
counterparty to the Class A-2FL Swap Trust in consideration for entering into
such replacement swap contract, if any (less any costs and expenses incurred by
the Class A-2FL Swap Trust in connection with entering into such replacement
swap contract).
(m) If, in connection with any Distribution Date, the Trustee has
reported the amount of an anticipated distribution to the Depository based on a
report received from the Master Servicer, and the final report from the Master
Servicer changes the initial amounts forwarded by the Master Servicer to the
Trustee or if there is Class A-2FL Swap Default, the Trustee shall use
commercially reasonable efforts to notify the Depository to make a revised
distribution on a timely basis on such Distribution Date. The Trustee shall not
be liable or held responsible for any resulting delay (or claim by the
Depository resulting therefrom) in the making of such distribution to the
Certificateholders and shall be entitled to reimbursement from the Class A-2FL
Swap Trust for any reasonable losses, costs or expenses resulting therefrom.
(n) On each Distribution Date, to the extent of the Class A-JFL
Available Funds for such Distribution Date, the Trustee shall make distributions
from the Class A-JFL Floating Rate Account in the following order of priority,
satisfying in full, to the extent required and possible, each priority before
making any distribution with respect to any succeeding priority:
(A) first, to the Holders of the Class A-JFL Certificates in
respect of interest, up to an amount equal to the Class A-JFL
Interest Distribution Amount, for such Distribution Date;
(B) second, to the Holders of the Class A-JFL Certificates in
reduction of the Certificate Balances thereof, an amount equal to
the Class A-JFL Principal Distribution Amount until the outstanding
Certificate Balance thereof has been reduced to zero;
(C) third, to the Holders of the Class A-JFL Certificates
until all Realized Losses and Additional Trust Fund Expenses
previously allocated to the Class A-JFL Certificates (as a result of
the allocation of Realized Losses and Additional Trust Fund Expenses
to the Class A-JFL Regular Interest) but not previously reimbursed,
have been reimbursed in full; and
(D) fourth, to pay termination payments, if any, to the A-JFL
Swap Counterparty; and
(E) fifth, any remaining amount to the Holders of the Class
A-JFL Certificates.
(o) So long as a Class A-JFL Distribution Conversion is not in
effect, any Prepayment Premiums paid on the Class A-JFL Regular Interest shall
be payable to the Class A-JFL Swap Counterparty pursuant to the terms of the
Class A-JFL Swap Contract on a net basis as part of the Class A-JFL Net Swap
Payment specified in Section 3.34. On each Distribution Date for which a Class
A-JFL Distribution Conversion is in effect, any Prepayment Premium paid on the
Class A-JFL Regular Interest shall be distributed to the Holders of the Class
A-JFL Certificates. Any termination payments due to the Class A-JFL Swap
Counterparty under the Class A-JFL Swap Contract shall be payable solely from
(i) amounts, if any, remaining in the Class A-JFL Floating Rate Account after
all other amounts have been paid to the Class A-JFL Regular Interest (including
all principal amounts outstanding) and to the Class A-JFL Certificates pursuant
to Section 4.01 and (ii) to the extent of any payment made by a replacement swap
counterparty to the Class A-JFL Swap Trust in consideration for entering into
such replacement swap contract, if any (less any costs and expenses incurred by
the Class A-JFL Swap Trust in connection with entering into such replacement
swap contract).
(p) If, in connection with any Distribution Date, the Trustee has
reported the amount of an anticipated distribution to the Depository based on a
report received from the Master Servicer, and the final report from the Master
Servicer changes the initial amounts forwarded by the Master Servicer to the
Trustee or if there is Class A-JFL Swap Default, the Trustee shall use
commercially reasonable efforts to notify the Depository to make a revised
distribution on a timely basis on such Distribution Date. The Trustee shall not
be liable or held responsible for any resulting delay (or claim by the
Depository resulting therefrom) in the making of such distribution to the
Certificateholders and shall be entitled to reimbursement from the Class A-JFL
Swap Trust for any reasonable losses, costs or expenses resulting therefrom.
Section 4.02 Statements to Certificateholders; Certain Reports by
the Master Servicer and the Special Servicer.
(a) On each Distribution Date, the Trustee shall provide or make
available, either in electronic format or by first class mail to each Holder
(and, if it shall have certified to the Trustee as to its Ownership Interest in
a Class of Book-Entry Certificates, each Certificate Owner) of the Certificates,
the Class A-2FL Swap Counterparty, the Class A-JFL Swap Counterparty, to the
Rating Agencies a statement substantially in the form set forth as Exhibit G
hereto (a "Distribution Date Statement") and based upon the information provided
by the Master Servicer in accordance with Commercial Mortgage Securities
Association guidelines, as to the distributions made on such Distribution Date
setting forth:
(i) the amount of the distribution, if any, on such Distribution
Date to the Holders of each Class of REMIC II Regular Certificates and the
Class A-2FL and Class A-JFL Regular Interests (and correspondingly, the
Class A-2FL and Class A-JFL Certificates) in reduction of the Class
Principal Balance thereof;
(ii) the amount of the distribution, if any, on such Distribution
Date to the Holders of each Class of REMIC II Regular Certificates and the
Class A-2FL and Class A-JFL Regular Interests allocable to Distributable
Certificate Interest, the Class A-2FL Interest Distribution Amount or the
Class A-JFL Interest Distribution Amount, as applicable, and the amount of
the distribution, if any, on such Distribution Date to the Holders of each
Class of REMIC II Regular Certificates and the Class A-2FL and Class A-JFL
Regular Interests allocable to Prepayment Premiums; and, with respect to
the Class A-2FL Certificates, if applicable, notification that the amount
of interest distribution thereon is equal to the interest distribution
amount with respect to the Class A-2FL Regular Interest which is being
paid as a result of a Class A-2FL Distribution Conversion; and, with
respect to the Class A-JFL Certificates, if applicable, notification that
the amount of interest distribution thereon is equal to the interest
distribution amount with respect to the Class A-JFL Regular Interest which
is being paid as a result of a Class A-JFL Distribution Conversion;
(iii) the aggregate amount of P&I Advances (both as to those within
any applicable grace period and those which are beyond any applicable
grace period, together with the aggregate amount of delinquencies) and
other Servicing Advances made in respect of the immediately preceding
Distribution Date;
(iv) P&I Advances outstanding as of the Master Servicer Remittance
Date;
(v) the aggregate amount of P&I Advances made with respect to the
Mortgage Pool and with respect to each Loan Group in respect of the
immediately preceding Determination Date;
(vi) the aggregate Stated Principal Balance of the Mortgage Pool
outstanding immediately before and immediately after such Distribution
Date;
(vii) the number, aggregate principal balance, weighted average
remaining term to maturity and weighted average Mortgage Rate of the
Mortgage Pool as of the end of the Collection Period for the immediately
preceding Determination Date;
(viii) as of the Determination Date for the related Distribution
Date, the number and aggregate unpaid principal balance of Mortgage Loans
(A) delinquent 30-59 days, (B) delinquent 60-89 days, (C) delinquent 90 or
more days, (D) current but specially serviced or in foreclosure but not a
REO Property and (E) identification of Mortgage Loans the Mortgagor for
which is subject to bankruptcy;
(ix) with respect to any REO Property included in the Trust Fund as
of the end of the Collection Period for such Distribution Date, the
principal balance of the Mortgage Loan as of the date such Mortgage Loan
became delinquent;
(x) the Accrued Certificate Interest and Distributable Certificate
Interest in respect of each Class of REMIC II Regular Certificates and the
Class A-2FL and Class A-JFL Regular Interests for such Distribution Date;
(xi) the aggregate amount of Distributable Certificate Interest
payable in respect of each Class of REMIC II Regular Certificates and the
Class A-2FL and Class A-JFL Regular Interests on such Distribution Date,
including, without limitation, any Distributable Certificate Interest
remaining unpaid from prior Distribution Dates;
(xii) any unpaid Distributable Certificate Interest in respect of
each Class of REMIC II Regular Certificates and the Class A-2FL and Class
A-JFL Regular Interests after giving effect to the distributions made on
such Distribution Date;
(xiii) the Pass-Through Rate for each Class of REMIC II Regular
Certificates and the Class A-2FL and Class A-JFL Regular Interests (and
correspondingly, the Class A-2FL and Class A-JFL Certificates) for such
Distribution Date;
(xiv) the Principal Distribution Amount with respect to the Mortgage
Pool and with respect to each Loan Group for such Distribution Date,
separately identifying the amounts distributable to each Class of REMIC II
Regular Certificates and the Class A-2FL and Class A-JFL Regular Interests
(and correspondingly, the Class A-2FL and Class A-JFL Certificates);
(xv) the aggregate of all Realized Losses incurred during the
related Collection Period and all Additional Trust Fund Expenses incurred
during the related Collection Period, and an itemization of all such
Additional Trust Fund Expenses;
(xvi) the Certificate Principal Balance or Notional Amount, as the
case may be, of each Class of REMIC II Regular Certificates and the Class
A-2FL and Class A-JFL Regular Interests (and correspondingly, the Class
A-2FL and Class A-JFL Certificates) outstanding immediately before and
immediately after such Distribution Date, separately identifying any
reduction therein due to the allocation of Realized Losses and Additional
Trust Fund Expenses on such Distribution Date;
(xvii) the Certificate Factor for each Class of Regular Certificates
immediately following such Distribution Date;
(xviii) the aggregate amount of servicing fees paid to the Master
Servicer and the Special Servicer, collectively and separately, during the
related Collection Period;
(xix) a brief description of any material waiver, modification or
amendment of any Loan entered into by the Master Servicer or Special
Servicer pursuant to Section 3.20 during the related Collection Period;
(xx) current and cumulative outstanding Advances with respect to the
Mortgage Pool and with respect to each Loan Group;
(xxi) current prepayments and curtailments;
(xxii) the number and aggregate principal balance of Mortgage Loans
as to which foreclosure proceedings have been commenced as to the related
Mortgaged Property;
(xxiii) the ratings from all Rating Agencies for all Classes of
Certificates;
(xxiv) the CMSA Reconciliation of Funds Report;
(xxv) the Class A-2FL Available Funds and the Class A-JFL Available
Funds for such Distribution Date;
(xxvi) LIBOR as calculated for the related Distribution Date and the
next succeeding Distribution Date;
(xxvii) the amounts received and paid in respect of the Class A-2FL
Swap Contract and the Class A-JFL Swap Contract;
(xxviii) identification of any Rating Agency Trigger Event or Swap
Default as of the close of business on the last day of the immediately
preceding calendar month with respect to the Class A-2FL Swap Contract or
the Class A-JFL Swap Contract, as applicable;
(xxix) the amount of any (A) payment by the A-2FL Swap Counterparty
or the Class A-JFL Swap Counterparty, as applicable, as a termination
payment, (B) payment in connection with the acquisition of a replacement
interest rate swap contract and (C) collateral posted in connection with
any Rating Agency Trigger Event; and
(xxx) the amount of, and identification of, any interest due thereon
(including without limitation, any termination payment received in
connection with the Class A-2FL Swap Contract or Class A-JFL Swap
Contract, as applicable).
Any item of information disclosed to the Trustee by the Master
Servicer pursuant to Section 3.19(a) since the preceding Distribution Date (or,
in the case of the initial Distribution Date, since the Closing Date) shall be
made available with the Distribution Date Statement.
In the case of information furnished pursuant to clauses (i), (ii)
and (iii) of this Section 4.02(a), the amounts shall be expressed as a dollar
amount in the aggregate for all Certificates of each applicable Class and per
Single Certificate. Except with respect to the Certificate Factor (required to
be reported by clause (xvii) of this Section 4.02(a)), financial information
reported by the Trustee to the Certificateholders pursuant to this Section 4.02
shall be expressed as a dollar amount rounded to the nearest whole cent. Absent
actual knowledge of an error therein, the Trustee shall have no obligation to
recompute, recalculate or verify any information provided to it by the Master
Servicer or Special Servicer. The calculations by the Trustee contemplated by
this Section 4.02 shall, in the absence of manifest error, be presumptively
deemed to be correct for all purposes hereunder.
The Trustee shall be entitled to rely on but shall not be
responsible for the content or accuracy of any information provided by third
parties for purposes of preparing the Distribution Date Statement and may affix
thereto any disclaimer it deems appropriate in its reasonable discretion
(without suggesting liability on the part of any other party hereto).
Within a reasonable period of time after the end of each calendar
year, the Trustee shall furnish to each Person who at any time during the
calendar year was a Holder of a Regular Certificate a statement containing the
information as to the applicable Class set forth in clauses (i), (ii), (xxviii)
and (xxix) of this Section 4.02(a), aggregated for such calendar year or
applicable portion thereof during which such Person was a Certificateholder,
together with such other information as the Trustee determines to be necessary
to enable Certificateholders to prepare their tax returns for such calendar
year. Such obligation of the Trustee shall be deemed to have been satisfied to
the extent that substantially comparable information shall be provided by the
Trustee pursuant to any requirements of the Code as from time to time are in
force.
Upon filing with the IRS, the REMIC Administrator shall furnish to
the Holders of the Class R-I and Class R-II Certificates the IRS Form 1066 and
shall furnish their respective Schedules Q thereto at the times required by the
Code or the IRS, and shall provide from time to time such information and
computations with respect to the entries on such forms as any Holder of the
Class R-I and Class R-II Certificates may reasonably request.
The Trustee will make available each month, to the general public,
the Distribution Date Statement (and any additional files containing the same
information in an alternative format) via the Trustee's Website. In addition,
the Trustee will make available to the general public each month the Servicer
Reports, the CMSA Loan Setup File and the Trustee's Reports on the Trustee's
Website. In addition, the Trustee will make available, as a convenience for
interested parties (and not in furtherance of the distribution of the Base
Prospectus and the Prospectus Supplement under the securities laws), this
Agreement, the Base Prospectus and the Prospectus Supplement via the Trustee's
Website. The Trustee will also make available copies of the Depositor's
registration statement and any other materials the Depositor files with the
Securities and Exchange Commission, including distribution reports on Form 10-D,
annual reports on Form 10-K, current reports on Form 8-K and amendments to these
reports available through this website promptly upon filing. The Trustee shall
have the right to change the way the monthly statements to Certificateholders
are distributed in order to make such distribution more convenient and/or more
accessible to the above parties and the Trustee shall provide timely and
adequate notification to all above parties regarding any such changes. For
assistance with the above-referenced services, interested parties may call (866)
000-0000. The Trustee will make no representations or warranties as to the
accuracy or completeness of such documents and will assume no responsibility
therefor. In addition, upon authorization of the Depositor, that is hereby
given, the Trustee shall make available to Bloomberg, L.P., Xxxxx, LLC, Intex
Solutions, Inc. and Standard & Poor's Conquest or such other vendors as chosen
by the Depositor, including Reuters, all electronic reports delivered or made
available pursuant to Section 4.02 of this Agreement to the Certificateholders
using a format mutually acceptable to such vendors and the Trustee.
In connection with providing access to the Trustee's Website, the
Trustee may require registration and the acceptance of a disclaimer. The Trustee
shall not be liable for the dissemination of the information in accordance
herewith.
(b) By 12:00 noon (New York City time) on the third Business Day
following each Determination Date (or with respect to the CMSA Loan Periodic
Update File, by 2:00 p.m. (New York City time) on the second Business Day
following each Determination Date), the Master Servicer shall deliver to the
Trustee, in a computer-readable medium downloadable by the Trustee, each of the
files and reports comprising the CMSA Investor Reporting Package (other than the
CMSA Bond Level File and the CMSA Collateral Summary File, which are prepared by
the Trustee), each reflecting information as of the close of business on such
Determination Date, in a mutually agreeable electronic format. The CMSA Loan
Periodic Update File contained in the CMSA Investor Reporting Package and any
written information supplemental thereto shall include such information with
respect to the Mortgage Loans that is reasonably required by the Trustee for
purposes of making the calculations and preparing the reports for which the
Trustee is responsible pursuant to Section 4.01, this Section 4.02, Section 4.04
or any other section of this Agreement, as set forth in reasonable written
specifications or guidelines issued by the Trustee from time to time. Such
information may be delivered by the Master Servicer to the Trustee by telecopy
or in such electronic or other form as may be reasonably acceptable to the
Trustee and the Master Servicer.
The Special Servicer shall from time to time (and, in any event, as
may be reasonably required by the Master Servicer) provide the Master Servicer
with such information in its possession regarding the Specially Serviced Loans
and REO Properties as may be necessary for the Master Servicer to prepare each
report and any supplemental information to be provided by the Master Servicer to
the Trustee.
Notwithstanding the foregoing, the failure of the Master Servicer or
the Special Servicer to disclose any information otherwise required to be
disclosed pursuant to Section 4.02(a) or this Section 4.02(b) shall not
constitute a breach of Section 4.02(a) or of this Section 4.02(b) to the extent
the Master Servicer or the Special Servicer so fails because such disclosure, in
the reasonable belief of the Master Servicer or the Special Servicer, as the
case may be, would violate any applicable law or any provision of a loan
document prohibiting disclosure of information with respect to the Loans or the
Mortgaged Properties, would constitute a waiver of the attorney-client privilege
on behalf of the Trust or would otherwise materially harm the Trust Fund. The
Master Servicer or the Special Servicer may affix to any information provided by
it any disclaimer it deems appropriate in its reasonable discretion (without
suggesting liability on the part of any other party hereto).
(c) Not later than 2:00 p.m. (New York City time) on the first
Business Day following each Determination Date, the Special Servicer shall
prepare and deliver or cause to be delivered to the Master Servicer, the
following reports (or data fields required for the Master Servicer to produce
such reports) with respect to the Specially Serviced Loans and any REO
Properties, providing the required information as of such Determination Date:
(i) a CMSA Property File; and (ii) a CMSA Special Servicer Loan File. In
addition, the Special Servicer shall from time to time provide the Master
Servicer with such information in the Special Servicer's possession regarding
the Specially Serviced Loans and REO Properties as may be requested by the
Master Servicer and is reasonably necessary for the Master Servicer to prepare
each report and any supplemental information required to be provided by the
Master Servicer to the Trustee.
(d) Notwithstanding anything herein to the contrary, the failure of
the Master Servicer or Special Servicer to disclose any information otherwise
required to be disclosed by this Section 4.02 shall not constitute a breach of
this Section 4.02 to the extent the Master Servicer or Special Servicer so fails
because such disclosure, in the reasonable belief of the Master Servicer or the
Special Servicer as the case may be, would violate any applicable law or any
provision of a loan document prohibiting disclosure of information with respect
to the Loans or Mortgaged Properties or would constitute a waiver of the
attorney-client privilege on behalf of the Trust. The Master Servicer and
Special Servicer may disclose any such information or any additional information
to any Person so long as such disclosure is consistent with applicable law, the
related loan documents and the Servicing Standard. The Master Servicer or the
Special Servicer may affix to any information provided by it any disclaimer it
deems appropriate in its reasonable discretion (without suggesting liability on
the part of any other party hereto).
(e) If the Master Servicer or the Special Servicer is required to
deliver any statement, report or information under any provision of this
Agreement (other than reports to be delivered to the Trustee, which shall be
delivered directly to the Trustee in a mutually agreeable electronic format),
the Master Servicer or the Special Servicer, as the case may be, may satisfy
such obligation by (x) physically delivering a paper copy of such statement,
report or information, (y) delivering such statement, report or information in a
commonly used electronic format or (z) making such statement, report or
information available on the Master Servicer's internet website, unless this
Agreement expressly specifies a particular method of delivery.
Section 4.03 P&I Advances.
(a) On each Master Servicer Remittance Date, the Master Servicer
shall in the case of all Mortgage Loans other than a Mortgage Loan included in a
Whole Loan, either (i) deposit into the Distribution Account from its own funds
an amount equal to the aggregate amount of P&I Advances, if any, to be made in
respect of the related Distribution Date, (ii) apply amounts held in the
Certificate Account for future distribution to Certificateholders in subsequent
months in discharge of any such obligation to make P&I Advances, or (iii) make
P&I Advances in the form of any combination of (i) and (ii) aggregating the
total amount of P&I Advances to be made; provided that if Late Collections of
any of the delinquent principal and/or interest in respect of which it is to
make P&I Advances on any Master Servicer Remittance Date are then on deposit in
the Certificate Account, the Master Servicer shall use such Late Collections
(net of any Master Servicing Fees, Liquidation Fees and Workout Fees payable
therefrom) to make such P&I Advances. With respect to each Mortgage Loan
included in a Whole Loan, on each Master Servicer Remittance Date, the Master
Servicer shall either (i) deposit into the related Distribution Account from its
own funds an amount equal to the aggregate amount of P&I Advances, if any, to be
made in respect of the related Distribution Date on the Mortgage Loan included
in such Whole Loan, (ii) subject to the terms of the related Intercreditor
Agreement, apply amounts held in the related Whole Loan Custodial Account for
future distribution in subsequent months in discharge of any such obligation to
make P&I Advances, or (iii) make P&I Advances in the form of any combination of
(i) and (ii) aggregating the total amount of P&I Advances to be made; provided
that if Late Collections of any of the delinquent principal and/or interest in
respect of which it is to make P&I Advances on any Master Servicer Remittance
Date are then on deposit in the related Whole Loan Custodial Account, the Master
Servicer shall use such Late Collections (net of any Master Servicing Fees,
Liquidation Fees and Workout Fees payable therefrom and any portion thereof
required to be paid to the related Companion Loan Holder in the case of a Whole
Loan under the related Intercreditor Agreement) to make such P&I Advances. Any
amounts held in the Certificate Account or if a Whole Loan is involved, the
related Whole Loan Custodial Account, for future distribution and so used to
make P&I Advances (other than the Late Collections of the delinquent principal
and/or interest contemplated by the proviso to the preceding sentence) shall be
appropriately reflected in the Master Servicer's records and replaced by the
Master Servicer by deposit into the Certificate Account or, if a Whole Loan is
involved, the related Whole Loan Custodial Account, on or before the next
succeeding Determination Date (to the extent not previously replaced through the
deposit of Late Collections of the delinquent principal and/or interest in
respect of which such P&I Advances were made). If, as of 3:00 p.m., New York
City time, on any Master Servicer Remittance Date, the Master Servicer shall not
have made any P&I Advance required to be made on such date pursuant to this
Section 4.03(a) (and shall not have delivered to the Trustee the requisite
Officer's Certificate and documentation related to a determination of
nonrecoverability of a P&I Advance), then the Trustee shall provide notice of
such failure to a Servicing Officer of the Master Servicer by facsimile
transmission sent to telecopy no. (000) 000-0000 (or such alternative number
provided by the Master Servicer to the Trustee in writing) and by telephone at
telephone no. (000) 000-0000 (or such alternative number provided by the Master
Servicer to the Trustee in writing) as soon as possible, but in any event before
4:00 p.m., New York City time, on such Master Servicer Remittance Date. If,
after such notice, the Trustee does not receive the full amount of such P&I
Advances by the close of business (New York City time) on such Master Servicer
Remittance Date, then (i) unless the Trustee determines that such Advance would
be a Nonrecoverable P&I Advance if made or the Trustee shall make, by 11:00 a.m.
on the Distribution Date or in any event by such time as shall be required to
make the required distribution on such Distribution Date, the portion of such
P&I Advances that was required to be, but was not, made by the Master Servicer
on such Master Servicer Remittance Date and (ii) such failure shall constitute
an Event of Default on the part of the Master Servicer. The making of an Advance
by a fiscal agent appointed by the Trustee pursuant to Section 8.06 shall not be
an Event of Default with respect to the Trustee. For the avoidance of doubt,
neither the Master Servicer nor the Trustee shall be required to make a P&I
Advance on any Companion Loan.
(b) The aggregate amount of P&I Advances to be made in respect of
the Loans (including, without limitation, Balloon Loans that are included in the
Trust Fund delinquent as to their respective Balloon Payments) and any REO Loans
for any Distribution Date shall equal, subject to subsection (c) of this Section
4.03, the aggregate of all Monthly Payments (other than Balloon Payments) and
any Assumed Monthly Payments, in each case net of related Master Servicing Fees
and, if applicable, any Non-Serviced Mortgage Loan Primary Servicing Fee payable
hereunder, that were due or deemed due, as the case may be, in respect thereof
on their respective Due Dates during the related Collection Period and that were
not paid by or on behalf of the related Mortgagors or otherwise collected as of
the close of business on the Business Day before the Master Servicer Remittance
Date; provided that if an Appraisal Reduction Amount exists with respect to any
Required Appraisal Serviced Loan, then, in the event of subsequent delinquencies
thereon, the interest portion of the P&I Advance in respect of such Required
Appraisal Serviced Loan or, in the case of a Mortgage Loan included in a Whole
Loan which is a Required Appraisal Serviced Loan, the related Mortgage Loan, as
the case may be, for the related Distribution Date shall be reduced (it being
herein acknowledged that there shall be no reduction in the principal portion of
such P&I Advance) to equal the product of (i) the amount of the interest portion
of such P&I Advance for such Mortgage Loan for such Distribution Date without
regard to this proviso, multiplied by (ii) a fraction, expressed as a
percentage, the numerator of which is equal to the Stated Principal Balance of
such Mortgage Loan immediately prior to such Distribution Date, net of the
related Appraisal Reduction Amount, if any, allocable to such Mortgage Loans and
the denominator of which is equal to the Stated Principal Balance of such
Required Appraisal Serviced Loan immediately prior to such Distribution Date;
provided, further, the Master Servicer shall not advance Excess Interest with
respect to ARD Loans or a Prepayment Premium. With respect to a Mortgage Loan
related to a Non-Serviced Whole Loan, if any "Appraisal Reduction Amount" (or
similarly defined amount) for such Non-Serviced Whole Loan applicable to such
Mortgage Loan under the related Non-Serviced Loan Pooling and Servicing
Agreement exists, the interest portion of the P&I Advance with respect to such
Mortgage Loan shall be reduced to equal the product of (A) the amount of the
interest portion of such P&I Advance for such Mortgage Loan without regard to
such Appraisal Reduction Amount by (B) a fraction expressed as a percentage, the
numerator of which is equal to the Stated Principal Balance of such Mortgage
Loan immediately prior to such Distribution Date, net of the related Appraisal
Reduction Amount allocable to such Mortgage Loan, and the denominator of which
is equal to the Stated Principal Balance of such Mortgage Loan immediately prior
to such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required to be made hereunder if such P&I Advance would, if made,
constitute a Nonrecoverable P&I Advance. In addition, with respect to the
Mortgage Loans, other than Mortgage Loans included in a Whole Loan,
Nonrecoverable P&I Advances shall be reimbursable pursuant to Section 3.05(a)
out of general collections on the Mortgage Pool on deposit in the Certificate
Account. With respect to a Mortgage Loan included in a Whole Loan,
Nonrecoverable P&I Advances shall be reimbursable pursuant to Section 3.05(f).
The determination by the Master Servicer or the Trustee that it has made a
Nonrecoverable P&I Advance has been made or that any proposed P&I Advance, if
made, would constitute a Nonrecoverable P&I Advance, or any such determination
made by the Special Servicer, shall be evidenced by an Officer's Certificate
delivered promptly (and, in any event, in the case of a proposed P&I Advance by
the Master Servicer, no less than five Business Days prior to the related Master
Servicer Remittance Date) to the Trustee (or, if applicable, retained thereby),
the Depositor, the Rating Agencies, the Directing Certificateholder and the
related Companion Loan Holder and any Controlling Holder, as applicable (in the
case of a Whole Loan), setting forth the basis for such determination, together
with (such determination is prior to the liquidation of the related Loan or REO
Property) a copy of an Appraisal of the related Mortgaged Property or REO
Property, as the case may be, which shall have been performed within the 12
months preceding such determination, and further accompanied by any other
information that the Master Servicer or the Special Servicer may have obtained
that supports such determination. The Trustee shall deliver such Officer's
Certificate as soon as practicable after its determination that such P&I Advance
would be nonrecoverable. If such an Appraisal shall not have been required and
performed pursuant to the terms of this Agreement, the Master Servicer may,
subject to its reasonable and good faith determination that such Appraisal will
demonstrate the nonrecoverability of the related Advance, obtain an Appraisal
for such purpose at the expense of the Trust out of general collections. The
Trustee shall be entitled to rely on any determination of nonrecoverability that
may have been made by the Master Servicer with respect to a particular P&I
Advance, and the Master Servicer and the Trustee shall be entitled to rely on
any determination of nonrecoverability that may have been made by the Special
Servicer with respect to a particular P&I Advance in the case of Specially
Serviced Loans.
(d) As and to the extent permitted by Section 3.05(a) or Section
3.05(f) with respect to a Whole Loan or any portion thereof, the Master Servicer
and the Trustee shall be entitled to receive interest at the Reimbursement Rate
in effect from time to time, accrued on the amount of each P&I Advance made
thereby (out of its own funds), to the extent that such P&I Advance relates to a
Past Grace Period Serviced Loan when made, or remains outstanding when such
Serviced Loan becomes a Past Grace Period Serviced Loan, in which case such
interest shall begin to accrue when such Serviced Loan becomes a Past Grace
Period Serviced Loan, for so long as such P&I Advance is outstanding (or, in the
case of Advance Interest payable to the Master Servicer, if earlier, until the
Late Collection of the delinquent principal and/or interest in respect of which
such P&I Advance was made has been received by the Master Servicer). Such
interest will be paid: first, out of any Default Charges as set forth in Section
3.27; and second, at any time coinciding with or following the reimbursement of
such P&I Advance, out of general collections on the Mortgage Loans and any REO
Properties on deposit in the Certificate Account or if a Whole Loan is involved,
out of general collections on deposit in the related Whole Loan Custodial
Account. As and to the extent provided by Section 3.05(a) or Section 3.05(f)
with respect to a Whole Loan, the Master Servicer shall reimburse itself or the
Trustee, as appropriate, for any P&I Advance made thereby as soon as practicable
after funds available for such purpose are deposited into the Certificate
Account or, if a Whole Loan is involved are deposited into the related Whole
Loan Custodial Account, and in no event shall interest accrue in accordance with
this Section 4.03(d) on any P&I Advance as to which the corresponding Late
Collection had been received as of the related date on which such P&I Advance
was made. Interest accrued on any P&I Advance made under this Section 4.03 with
respect to: (A) a Whole Loan which is a Pari Passu Whole Loan shall be payable
(unless required to be paid to the related Companion Loan Holder under any
Intercreditor Agreement): (i) first, out of the pro rata portion of Default
Charges collected on or in respect of the Mortgage Loan related to such Whole
Loan during the same Collection Period in which such P&I Advance is reimbursed,
(ii) second, to the extent that the Default Charges described in the immediately
preceding clause (i) are insufficient, but only if such P&I Advance is being
reimbursed at the same time or if such P&I Advance has been previously
reimbursed, out of such Mortgage Loan's pro rata portion of any other
collections that were made on or in respect of allocable to such Mortgage Loan
related to such Whole Loan, and (iii) third, solely with respect to such Whole
Loan, to the extent that Default Charges or other collections described in the
immediately preceding clauses (i) and (ii) are insufficient, but only if such
P&I Advance is being reimbursed at the same time or if such Advances has been
previously reimbursed, out of general collections on or in respect of the
Mortgage Loans, or (B) a Whole Loan which is an A/B Whole Loan shall be payable
(unless required to be paid to the related Companion Loan Holder under any
Intercreditor Agreement): (i) first, out of Default Charges collected on or in
respect of the related A/B Companion Loan, during the 12-month period in which
such Advance is reimbursed, (ii) second, out of Default Charges collected on or
in respect of the related Mortgage Loan, as applicable, during the same
Collection Period in which such P&I Advance is reimbursed, (iii) third, to the
extent that the Default Charges described in the immediately preceding clause
(i) and (ii) are insufficient, but only if such P&I Advance is being reimbursed
at the same time or if such P&I Advance has been previously reimbursed, out of
any other collections that were made on or in respect of such A/B Whole Loan,
and (iv) solely with respect to such A/B Whole Loan, to the extent that Default
Charges or other collections described in the immediately preceding clauses (i),
(ii) and (iii) are insufficient, but only if such P&I Advance is being
reimbursed at the same time or if such Advances has been previously reimbursed,
out of general collections on or in respect of the Mortgage Loans.
(e) With regard to such P&I Advances, the Master Servicer, the
Special Servicer or the Trustee shall account for that part of the P&I Advances
that is attributable to Past Grace Period Serviced Loans, and that part of the
P&I Advances that is attributable to Within Grace Period Loans.
(f) With respect to each Whole Loan with a Pari Passu Companion Loan
that will not be included in the Trust Fund, if (i) the Master Servicer or any
master servicer for a securitization relating to the Pari Passu Companion Loan
determines that a proposed P&I Advance, if made, would be a Nonrecoverable P&I
Advance or an outstanding P&I Advance is or would be nonrecoverable and (ii)
notice of such determination has been delivered by the Master Servicer or the
Master Servicer receives written notice of such determination by any other
master servicer for a securitization relating to the Pari Passu Companion Loan,
none of the Master Servicer, the Trustee, the other master servicers or any
other party to the related pooling and servicing agreement may make any
additional P&I Advances with respect to the related Mortgage Loan or the Pari
Passu Companion Loan until the Master Servicer has consulted with the other
applicable master servicers and they agree that circumstances with respect to
the related Whole Loan have changed such that a proposed future P&I Advance
would not be a Nonrecoverable Advance. Notwithstanding the foregoing, the Master
Servicer will not be required to abide by any determination of
non-recoverability by another master servicer that is not an "approved" master
servicer by any of the Rating Agencies rating the Certificates.
(g) None of the Master Servicer or the Trustee shall advance any
amount due to be paid by the Class A-2FL Swap Counterparty or the Class A-JFL
Swap Counterparty for distribution to the Class A-2FL Certificates or the Class
A-JFL Certificates, respectively. In addition, for the avoidance of doubt, if
funds allocated to payment of interest distributions on the Class A-2FL Regular
Interest or the Class A-JFL Regular Interest are insufficient to pay the Accrued
Certificate Interest on the Class A-2FL Regular Interest or the Class A-JFL
Regular Interest, as applicable, the amount paid to the Class A-2FL Swap
Counterparty or the Class A-JFL Swap Counterparty, as applicable, will be
reduced and interest paid by the Class A-2FL Swap Counterparty or the Class
A-JFL Swap Counterparty, as applicable, under the Class A-2FL Swap Contract or
the Class A-JFL Swap Contract, as applicable, will be reduced, on a
dollar-for-dollar basis, by an amount equal to the difference between the amount
actually paid to the Class A-2FL Swap Counterparty or the Class A-JFL Swap
Counterparty, as applicable, and the amount that would have been paid if the
funds allocated to payment of interest distributions on the Class A-2FL Regular
Interest or the Class A-JFL Regular Interest, as applicable, had been sufficient
to pay the Accrued Certificate Interest on the Class A-2FL Regular Interest or
the Class A-JFL Regular Interest, as applicable.
Section 4.04 Allocation of Realized Losses and Additional Trust Fund
Expenses.
(a) On each Distribution Date, the Trustee shall determine the
amount, if any, by which (i) the then aggregate Certificate Principal Balance of
the Sequential Pay Certificates and the Class A-2FL and Class A-JFL Regular
Interests exceeds (ii) the aggregate Stated Principal Balance of the Mortgage
Pool that will be outstanding immediately following such Distribution Date
(provided, however, for purposes of this calculation, any Workout-Delayed
Reimbursement Amounts paid from principal collections on the Mortgage Pool shall
for purposes of this calculation be deemed to still be outstanding unless the
related Unliquidated Advance has been determined to be a Nonrecoverable Advance
on the related Serviced Loan or a Final Determination has been made with respect
to the related Serviced Loan or the related Mortgage Loan or REO Property is
otherwise liquidated or disposed). If such excess does exist, then the Class
Principal Balances of the Class S Certificates, Class Q Certificates, Class P
Certificates, Class O Certificates, Class N Certificates, Class M Certificates,
Class L Certificates, Class K Certificates, Class J Certificates, Class H
Certificates, Class G Certificates, Class F Certificates, Class E Certificates,
Class D Certificates, Class C Certificates, Class B Certificates, Class A-J
Certificates, Class A-JFL Regular Interest and Class A-M Certificates shall be
reduced sequentially, in that order in each case, until such excess or the
related Class Principal Balance is reduced to zero (whichever occurs first);
provided that the Class A-J Certificates and Class A-JFL Regular Interest are
pro rata. If, after the foregoing reductions, the amount described in clause (i)
of the second preceding sentence still exceeds the amount described in clause
(ii) of the second preceding sentence, then the respective Class Principal
Balances of the Class A-1 Certificates, Class A-2 Certificates, Class A -2FL
Regular Interest, Class A-3 Certificates, Class A-AB Certificates, Class A-4
Certificates and Class A-1A Certificates shall be reduced, pro rata, in
accordance with the relative sizes of the then outstanding Class Principal
Balances of such Classes, until such excess or each such Class Principal Balance
is reduced to zero (whichever occurs first). Such reductions in the Class
Principal Balances of the respective Classes of the Sequential Pay Certificates
and the Class A-2FL and Class A-JFL Regular Interests shall be deemed to be
allocations of Realized Losses and Additional Trust Fund Expenses, to the extent
not covered by reductions in distributions of interest pursuant to the
allocations set forth in Section 4.01(b).
(b) With respect to any Distribution Date, any Realized Losses or
Additional Trust Fund Expenses allocated pursuant to Section 4.04(a) with
respect to such Distribution Date shall reduce the REMIC I Principal Balances of
the REMIC I Regular Interests as a write-off and shall be allocated among the
REMIC I Regular Interests in the same priority as the Class of Corresponding
Certificates.
Section 4.05 Interest Reserve Account.
The Master Servicer shall establish and maintain the Interest
Reserve Account in the Trustee's name for the benefit of the Certificateholders.
The Interest Reserve Account shall be established and maintained, at all times,
as an Eligible Account, which the Master Servicer may (but shall not be
obligated to) invest only in Permitted Investments in accordance with Section
3.06. On each Master Servicer Remittance Date occurring in February and each
Master Servicer Remittance Date in January of any year that is not a leap year
(unless, in either case, the related Distribution Date is the final Distribution
Date), the Master Servicer shall withdraw from the Certificate Account, in
respect of each Mortgage Loan that accrues interest on an Actual/360 Basis, and
deposit into the Interest Reserve Account, an amount equal to one day's interest
at the related Net Mortgage Rate on the Stated Principal Balance of each such
Mortgage Loan or as of the Distribution Date in the month preceding the month in
which such Master Servicer Remittance Date occurs, to the extent a Monthly
Payment or P&I Advance is made in respect thereof (all amounts so deposited in
any consecutive January (if applicable) and February, "Withheld Amounts"). On
the Master Servicer Remittance Date in March (or February, if the related
Distribution Date is the final Distribution Date) of each calendar year, the
Master Servicer shall remit to the Trustee for deposit into the REMIC I
Distribution Account all Withheld Amounts on deposit in the Interest Reserve
Account with respect to Mortgage Loans.
Section 4.06 Excess Interest Distribution Account.
The Trustee shall establish and maintain the Excess Interest
Distribution Account in trust for the benefit of the Class V Certificateholders
whether or not such Certificates have an outstanding Class Principal Balance.
The Excess Interest Distribution Account shall be established and maintained at
all times as an Eligible Account, which the Trustee may (but shall not be
obligated to) invest only in Permitted Investments in accordance with Section
3.06. The Excess Interest Distribution Account may be a sub-account of the
Distribution Account. Prior to the applicable Distribution Date, the Master
Servicer shall remit to the Trustee for deposit in the Excess Interest
Distribution Account an amount equal to the Excess Interest received during the
applicable Collection Period. Following the distribution of Excess Interest to
Class V Certificateholders on the first Distribution Date after which there are
no longer any Mortgage Loans outstanding which pursuant to their terms could pay
Excess Interest, the Trustee shall terminate the Excess Interest Distribution
Account.
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.
(a) The Certificates will be substantially in the respective forms
annexed hereto as Exhibits A-1 through and including A-30; provided that any of
the Certificates may be issued with appropriate insertions, omissions,
substitutions and variations, and may have imprinted or otherwise reproduced
thereon such legend or legends, not inconsistent with the provisions of this
Agreement, as may be required to comply with any law or with rules or
regulations pursuant thereto, or with the rules of any securities market in
which the Certificates are admitted to trading, or to conform to general usage.
The Certificates will be issuable in registered form only; provided, however, in
accordance with Section 5.03 beneficial ownership interests in the Regular
Certificates shall initially be held and transferred through the book-entry
facilities of the Depository. The Class A-1, Class A-2, Class A-2FL, Class A-3,
Class A-AB, Class A-4, Class A-1A, Class A-M, Class A-J and Class A-JFL
Certificates will be issuable in denominations corresponding to initial
Certificate Principal Balances as of the Closing Date of not less than $10,000
and any whole dollar denomination in excess thereof; the Class B, Class C, Class
D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class
N, Class O, Class P, Class Q and Class S Certificates will be issuable in
denominations corresponding to initial Certificate Principal Balances as of the
Closing Date of not less than $100,000 and any whole dollar denomination in
excess thereof; the Class XW Certificates will be issuable in denominations
corresponding to initial Notional Balances as of the Closing Date of not less
than $1,000,000 and any whole dollar denomination in excess thereof; provided,
however, a single Certificate of any Class thereof may be issued in a different
denomination. The Class V Certificates will be issuable only in denominations
representing not less than 10% of the Percentage Interest. Each Class of REMIC
Residual Certificates will be issuable only in a denomination representing the
entire Class. With respect to any Certificate or any beneficial interest in a
Certificate, the "Denomination" thereof shall be (i) the amount (a) set forth on
the face thereof, (b) set forth on a schedule attached thereto or (c) in the
case of any beneficial interest in a Book-Entry Certificate, the interest of the
related Certificate Owner in the applicable Class of Certificates as reflected
on the books and records of the Depository or related Participants, as
applicable, (ii) expressed in terms of initial Certificate Principal Balance or
initial Notional Amount, as applicable, and (iii) be in an authorized
denomination, as set forth above. The Book-Entry Certificates will be issued as
one or more certificates registered in the name of a nominee designated by the
Depository, and Certificate Owners will hold interests in the Book-Entry
Certificates through the book-entry facilities of the Depository in the minimum
Denominations and aggregate Denominations as set forth in the above. No
Certificate Owner of a Book-Entry Certificate of any Class thereof will be
entitled to receive a Definitive Certificate representing its interest in such
Class, except as provided in Section 5.03. Unless and until Definitive
Certificates are issued in respect of a Class of Book-Entry Certificates,
beneficial ownership interests in such Class of Certificates will be maintained
and transferred on the book-entry records of the Depository and Depository
Participants, and all references to actions by Holders of such Class of
Certificates will refer to action taken by the Depository upon instructions
received from the related registered Holders of Certificates through the
Depository Participants in accordance with the Depository's procedures and,
except as otherwise set forth herein, all references herein to payments,
notices, reports and statements to Holders of such Class of Certificates will
refer to payments, notices, reports and statements to the Depository or its
nominee as the registered Holder thereof, for distribution to the related
registered Holders of Certificates through the Depository Participants in
accordance with the Depository's procedures.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee in its capacity as trustee hereunder by an
authorized signatory. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the authorized officers of the Trustee shall be
entitled to all benefits under this Agreement, subject to the following
sentence, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificates. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, however, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed by the
Certificate Registrar by manual signature, and such certificate of
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication;
provided that the Certificates, issued on the Closing Date shall, in any event,
be dated the Closing Date.
(c) Any Definitive Certificates shall be printed, typewritten,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner permitted by the rules of any securities
exchange on which any of the Certificates may be listed, or as may, consistently
herewith, be determined by the officers executing such Certificates, as
evidenced by their execution thereof.
Section 5.02 Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register in
which, subject to such reasonable regulations as the Certificate Registrar
(located as of the Closing Date at Xxxxx Fargo Center, Sixth and Marquette,
Minneapolis, Minnesota 55479-0113) may prescribe, the Certificate Registrar
shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. The Trustee is hereby initially
appointed (and hereby agrees to act in accordance with the terms hereof) as
Certificate Registrar for the purpose of registering Certificates and transfers
and exchanges of Certificates as herein provided. The Trustee may appoint, by a
written instrument delivered to the Depositor, the Master Servicer, the Special
Servicer and the REMIC Administrator, any other bank or trust company to act as
Certificate Registrar under such conditions as the predecessor Certificate
Registrar may prescribe, provided that the Trustee shall not be relieved of any
of its duties or responsibilities hereunder as Certificate Registrar by reason
of such appointment. If the Trustee resigns or is removed in accordance with the
terms hereof, the successor trustee shall immediately succeed to its
predecessor's duties as Certificate Registrar. The Depositor, the Master
Servicer, the Special Servicer and the REMIC Administrator shall have the right
to inspect the Certificate Register or to obtain a copy thereof at all
reasonable times, and to rely conclusively upon a certificate of the Certificate
Registrar as to the information set forth in the Certificate Register. Upon
request, the Trustee shall promptly inform, or cause the Certificate Registrar
to inform, the Master Servicer or the Special Servicer, as applicable, of the
identity of all Certificateholders of the Controlling Class.
If Certificateholders representing more than 25% of any Class of
Certificates (hereinafter referred to as "applicants") apply in writing to the
Trustee, and such application states that the applicants desire to communicate
with other Certificateholders with respect to their rights under this Agreement
or under the Certificates and is accompanied by a copy of the communication that
such applicants propose to transmit, then the Trustee shall, within five
Business Days after the receipt of such application, afford such applicants
access during normal business hours to the most recent list of
Certificateholders held by the Trustee. If the Trustee is no longer the
Certificate Registrar and such a list is as of a date more than 90 days prior to
the date of receipt of such applicants' request, the Trustee shall promptly
request from the Certificate Registrar a current list as provided above, and
shall afford such applicants access to such list promptly upon receipt.
Every Certificateholder, by receiving and holding such list, agrees
with the Certificate Registrar and the Trustee that neither the Certificate
Registrar nor the Trustee shall be held accountable by reason of the disclosure
of any such information as to the names and addresses of the Certificateholders
hereunder, regardless of the source from which such information was derived.
(b) No transfer of any Non-Registered Certificate shall be made
unless that transfer is made pursuant to an effective registration statement
under the Securities Act, and effective registration or qualification under
applicable state securities laws, or is made in a transaction that does not
require such registration or qualification. If a transfer (other than one by the
Depositor to an Affiliate thereof or the initial transfer thereof) is to be made
in reliance upon an exemption from the Securities Act, and under the applicable
state securities laws, then either: (i) the Certificate Registrar shall require
that the transferee deliver to the Certificate Registrar an investment
representation letter (the "Investment Representation Letter") substantially in
the form of Exhibit B attached hereto, which Investment Representation Letter
shall certify, among other things, that the transferee is an institutional
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act (an "Institutional Accredited Investor")
or a "qualified institutional buyer" as defined in Rule 144A under the
Securities Act (a "Qualified Institutional Buyer"), and the Certificate
Registrar may also require that the transferee deliver to the Certificate
Registrar an Opinion of Counsel if such transferee is not a Qualified
Institutional Buyer or (ii) if the certifications described in the preceding
clause (i) cannot be provided, (a) the Certificate Registrar shall require an
Opinion of Counsel reasonably satisfactory to the Certificate Registrar and the
Depositor that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from registration or
qualification under the Securities Act, applicable state securities laws and
other relevant laws, which Opinion of Counsel shall not be an expense of the
Trust Fund, the Certificate Registrar, the Depositor or the Trustee and (b) the
Certificate Registrar shall require the transferor to execute a certification in
form and substance satisfactory to the Certificate Registrar setting forth the
facts surrounding such transfer; provided, however, a transfer of a
Non-Registered Certificate of any such Class may be made to a trust if the
transferor provides to the Certificate Registrar and to the Trustee a
certification that interests in such trust may only be transferred subject to
requirements substantially to the effect set forth in this Section 5.02. The
Master Servicer will furnish, or cause to be furnished, upon the request of any
Holder of Non-Registered Certificates, to a prospective purchaser of such
Non-Registered Certificates who is a Qualified Institutional Buyer, such
information relating to the Mortgage Loans that are in its possession and as is
specified in paragraph (d)(4) of Rule 144A with respect to the Trust Fund,
unless, at the time of such request, the entity with respect to which such
information is to be provided is subject to the reporting requirements of
Section 15(d) of the Exchange Act. None of the Depositor, the Trustee, the
Master Servicer, the Special Servicer or the Certificate Registrar is obligated
to register or qualify any Class of Non-Registered Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under this Agreement to permit the transfer of any Non-Registered
Certificate without registration or qualification. Any Holder of a
Non-Registered Certificate desiring to effect such a transfer shall, and does
hereby agree to, indemnify the Depositor, the Trustee, the Master Servicer, the
Special Servicer and the Certificate Registrar against any liability that may
result if the transfer is not so exempt or is not made in accordance with such
federal and state laws. Unless the Certificate Registrar determines otherwise in
accordance with applicable law and the rules and procedures of, or applicable
to, the Depository (the "Depository Rules"), transfers of a beneficial interest
in a Book-Entry Certificate representing an interest in a Non-Registered
Certificate that is not rated in one of the top four categories by a nationally
recognized statistical rating organization to (i) an Institutional Accredited
Investor will require delivery in the form of a Definitive Certificate and the
Certificate Registrar shall register such transfer only upon compliance with the
foregoing provisions of this Section 5.02(b) or (ii) a Qualified Institutional
Buyer may only be effectuated by means of an "SRO Rule 144A System" approved for
such purpose by the Commission.
(c) With respect to the ERISA Restricted Certificates, the Class V
Certificates and REMIC Residual Certificates: no sale, transfer, pledge or other
disposition by any Holder of any such Certificate shall be made unless the
Certificate Registrar shall have received either (i) a representation letter
from the proposed purchaser or transferee of such Certificate substantially in
the form of Exhibit E attached hereto, to the effect that such proposed
purchaser or transferee is not (a) an employee benefit plan subject to the
fiduciary responsibility provisions of ERISA or a plan subject to Section 4975
of the Code, or a governmental plan (as defined in Section 3(32) of ERISA)
subject to any federal, state or local law ("Similar Law") that is, to a
material extent, similar to the foregoing provisions of ERISA or the Code (each
a "Plan") or (b) a person acting on behalf of or using the assets of any such
Plan (including an entity whose underlying assets include Plan assets by reason
of investment in the entity by such Plan and the application of Department of
Labor Regulation ss. 2510.3-101), other than (except with respect to the Class V
Certificates or a REMIC Residual Certificate) an insurance company using the
assets of its general account under circumstances whereby the purchase and
holding of such Certificates by such insurance company would be exempt from the
prohibited transaction provisions of ERISA and the Code under Prohibited
Transaction Class Exemption 95-60 or (ii) except for the Class V Certificates or
the REMIC Residual Certificates (which may not be transferred to a Holder who
does not make the representation described in clause (i)(a) or (i)(b)), of this
Section 5.02(c), if such Certificate is presented for registration in the name
of a purchaser or transferee that is any of the foregoing, any Opinion of
Counsel or other certification as the Certificate Registrar may reasonably
require and in form and substance satisfactory to the Certificate Registrar and
the Depositor to the effect that the acquisition and holding of such Certificate
by such purchaser or transferee will not constitute or result in a non-exempt
"prohibited transaction" within the meaning of ERISA, Section 4975 of the Code
or any Similar Law, and will not subject the Trustee, the Certificate Registrar,
the Master Servicer, the Special Servicer, the Underwriters, the Initial
Purchasers or the Depositor to any obligation or liability (including
obligations or liabilities under ERISA, Section 4975 of the Code or any such
Similar Law) in addition to those set forth in this Agreement. The Certificate
Registrar shall not register the sale, transfer, pledge or other disposition of
any such Certificate unless the Certificate Registrar has received either the
representation letter described in clause (i) of this Section 5.02(c) or, with
respect to the ERISA Restricted Certificates, the Opinions of Counsel or other
certification described in clause (ii) of this Section 5.02(c). The costs of any
of the foregoing representation letters, certifications or Opinions of Counsel
shall not be borne by any of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Underwriters, the Initial Purchasers, the Certificate
Registrar or the Trust Fund. With respect to transfers of Book-Entry
Certificates only, to the extent the purchase or holding of a Certificate
described in this Section 5.02(c) would be restricted by ERISA, the Code or
Similar Law, each Certificate Owner of such Certificate shall be deemed to
represent that it is not a Person specified in clause (i)(a) or (i)(b) of this
Section 5.02(c) and therefore shall not be required pursuant to this Section
5.02(c) to deliver to the Certificate Registrar the representation letter in the
form of Exhibit E attached hereto described in clause (i) of this Section
5.02(c), or the Opinion of Counsel or other certification described in clause
(ii) of this Section 5.02(c). Any transfer, sale, pledge or other disposition of
any such Certificates that would constitute or result in a prohibited
transaction under ERISA, Section 4975 of the Code or any Similar Law, or would
otherwise violate the provisions of this Section 5.02(c) shall be deemed
absolutely null and void ab initio, to the extent permitted under applicable
law.
Each beneficial owner of a Class A-2FL or Class A-JFL Certificate
that is or is acting on behalf of a Plan will be deemed to represent that at
least one of Prohibited Transaction Class Exemption 84-14, 90-1, 91-38, 96-50 or
96-23 or a similar exemption under Similar Law will apply to its acquisition and
holding of its interest in the Class A-2FL or Class A-JFL Certificate.
Any transfer, sale, pledge or other disposition of any such
Certificates that would constitute or result in a prohibited transaction under
ERISA, Section 4975 of the Code or any Similar Law, or would otherwise violate
the provisions of this Section 5.02(c) shall be deemed absolutely null and void
ab initio, to the extent permitted under applicable law.
So long as any of the Class of Certificates remains outstanding, the
Master Servicer will make available, or cause to be made available, upon
request, to any Holder and any Person to whom any such Certificate of any such
Class of Certificates may be offered or sold, transferred, pledged or otherwise
disposed of by such Holder, information with respect to the Master Servicer, the
Special Servicer or the Mortgage Loans reasonably necessary to the provision of
an Opinion of Counsel described in this Section 5.02(c).
(d) (i) Each Person who has or who acquires any Ownership Interest
in a REMIC Residual Certificate shall be deemed by the acceptance or acquisition
of such Ownership Interest to have agreed to be bound by the following
provisions and to have irrevocably authorized the Trustee under clause (ii) of
this Section 5.02(d) to deliver payments to a Person other than such Person. The
rights of each Person acquiring any Ownership Interest in a REMIC Residual
Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in
a REMIC Residual Certificate shall be a Permitted Transferee and
shall promptly notify the Trustee and the REMIC Administrator of any
change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership
Interest in a REMIC Residual Certificate (other than in connection
with the initial issuance thereof or the transfer thereof among the
Depositor and its Affiliates), the Certificate Registrar shall
require delivery to it, and shall not register the Transfer of any
REMIC Residual Certificate until its receipt of, an affidavit and
agreement substantially in the form attached hereto as Exhibit C-1
(a "Transfer Affidavit and Agreement") from the proposed Transferee,
in form and substance satisfactory to the Certificate Registrar,
representing and warranting, among other things, that such
Transferee is a Permitted Transferee, that it is not acquiring its
Ownership Interest in the REMIC Residual Certificate that is the
subject of the proposed Transfer as a nominee, trustee or agent for
any Person that is not a Permitted Transferee, that for so long as
it retains its Ownership Interest in a REMIC Residual Certificate it
will endeavor to remain a Permitted Transferee, and that it has
reviewed the provisions of this Section 5.02(d) and agrees to be
bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) of this Section
5.02(d), if the Certificate Registrar has actual knowledge that the
proposed Transferee is not a Permitted Transferee, no Transfer of an
Ownership Interest in a REMIC Residual Certificate to such proposed
Transferee shall be effected.
(D) Except in connection with the initial issuance of the
REMIC Residual Certificates or any transfer thereof among the
Depositor and its Affiliates, each Person holding or acquiring any
Ownership Interest in a REMIC Residual Certificate shall agree (1)
to require a Transfer Affidavit and Agreement from any prospective
Transferee to whom such Person attempts to transfer its Ownership
Interest in such REMIC Residual Certificate and (2) not to transfer
its Ownership Interest in such REMIC Residual Certificate unless it
provides to the Certificate Registrar a certificate substantially in
the form attached hereto as Exhibit C-2 stating that, among other
things, it has no actual knowledge that such prospective Transferee
is not a Permitted Transferee.
(ii) If any purported Transferee shall become a Holder of a REMIC
Residual Certificate in violation of the provisions of this Section
5.02(d), then the last preceding Holder of such REMIC Residual Certificate
that was in compliance with the provisions of this Section 5.02(d) shall
be restored, to the extent permitted by law, to all rights as Holder
thereof retroactive to the date of registration of such Transfer of such
REMIC Residual Certificate. None of the Trustee, the Master Servicer, the
Special Servicer, the REMIC Administrator or the Certificate Registrar
shall be under any liability to any Person for any registration of
Transfer of a REMIC Residual Certificate that is in fact not permitted by
this Section 5.02(d) or for making any payments due on such Certificate to
the Holder thereof or for taking any other action with respect to such
Holder under the provisions of this Agreement.
(iii) The REMIC Administrator shall make available to the IRS and
those Persons specified by the REMIC Provisions all information necessary
to compute any tax imposed as a result of the Transfer of an Ownership
Interest in a REMIC Residual Certificate to any Person who is a
Disqualified Organization or a nominee, agent or middleman thereof,
including the information described in Treasury Regulations Sections
1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions"
of such REMIC Residual Certificate. The Person holding such Ownership
Interest shall be responsible for the reasonable compensation of the REMIC
Administrator for providing such information.
(e) Subject to the restrictions on transfer and exchange set forth
in this Section 5.02, the Holder of any Definitive Certificate may transfer or
exchange the same in whole or in part (with a Denomination equal to any
authorized denomination) by surrendering such Certificate at the Certificate
Registrar's office or at the office of any successor Certificate Registrar or
transfer agent appointed by the Certificate Registrar, together with an
instrument of assignment or transfer (executed by the Holder or its duly
authorized attorney), in the case of transfer, and a written request for
exchange in the case of exchange. Subject to the restrictions on transfer set
forth in this Section 5.02 and Depository Rules, any Certificate Owner owning a
beneficial interest in a Non-Registered Certificate may cause the Certificate
Registrar to request that the Depository exchange such Certificate Owner's
beneficial interest in a Book-Entry Certificate for a Definitive Certificate or
Certificates. Following a proper request for transfer or exchange, the
Certificate Registrar shall, execute and deliver at such offices or at the
office of such transfer agent, as the case may be, to the transferee (in the
case of transfer) or Holder (in the case of exchange) or send by first class
mail (at the risk of the transferee in the case of transfer or Holder in the
case of exchange) to such address as the transferee or Holder, as applicable,
may request, a Definitive Certificate or Certificates, as the case may require,
for a like aggregate Denomination and in such Denomination or Denominations as
may be requested.
(f) In the event a Responsible Officer of the Certificate Registrar
becomes aware that a Definitive Certificate or a beneficial interest in a
Book-Entry Certificate representing a Non-Registered Certificate is being held
by or for the benefit of a Person who is not an Institutional Accredited
Investor, or that such holding is unlawful under the laws of a relevant
jurisdiction, then the Certificate Registrar shall have the right to void such
transfer, if permitted under applicable law, or to require the investor to sell
such Definitive Certificate or beneficial interest in such Book-Entry
Certificate to an Institutional Accredited Investor within 14 days after notice
of such determination and each Certificateholder by its acceptance of a
Certificate authorizes the Certificate Registrar to take such action. (g) Every
Certificate presented or surrendered for transfer or exchange shall (if so
required by the Certificate Registrar) be duly endorsed by, or be accompanied by
a written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder thereof or his attorney duly authorized
in writing.
(h) No service charge shall be imposed for any transfer or exchange
of Certificates, but the Trustee or the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates. In
addition, in connection with any transfer to an Institutional Accredited
Investor, the transferor shall reimburse the Trust Fund for any costs (including
the cost of the Certificate Registrar's counsel's review of the documents and
any legal opinions, submitted by the transferor or transferee to the Certificate
Registrar as provided herein) incurred by the Certificate Registrar in
connection with such transfer.
(i) Subsequent to the initial issuance of the Certificates, the
Trustee shall be responsible for the preparation of physical Certificates in
connection with any transfer or exchange; provided that the correct form of
Certificate of each Class shall be provided by the Depositor to the Trustee on
diskette on or about the Closing Date. All Certificates surrendered for transfer
and exchange shall be physically canceled by the Certificate Registrar, and the
Certificate Registrar shall hold or destroy such canceled Certificates in
accordance with its standard procedures.
(j) The Certificate Registrar shall be required to provide the
Depositor and the REMIC Administrator with an updated copy of the Certificate
Register on or about January 1 of each year, commencing January 1, 2008, and
shall be required to provide the Depositor, the Master Servicer, the Special
Servicer or the REMIC Administrator with an updated copy of the Certificate
Register at other times promptly upon written request therefor.
(k) If a Person is acquiring any Non-Registered Certificate or
interest therein as a fiduciary or agent for one or more accounts, such Person
shall be required to deliver to the Certificate Registrar (or, in the case of a
Book-Entry Certificate, to the Certificate Owner that is transferring such
interest) a certification to the effect that, and such other evidence as may be
reasonably required by the Trustee (or such Certificate Owner) to confirm that,
it has (i) sole investment discretion with respect to each such account and (ii)
full power to make the acknowledgments, representations, warranties,
certification and agreements with respect to each such account as set forth in
subsections (b), (c) and (d), as applicable, of this Section 5.02.
(l) Any Holder of an interest in a Regulation S Global Certificate
in respect of the Certificates shall have the right, upon prior written notice
to the Depositor, the Trustee, Euroclear or Clearstream, as applicable, and the
Depository, in the form of the Exchange Certificate attached hereto as Exhibit
Q, to exchange all or a portion of such interest for an equivalent interest in a
Domestic Global Certificate in connection with a transfer of its interest
therein to a transferee that is eligible to hold an interest in a Domestic
Global Certificate as set forth herein. Any Holder of an interest in a Domestic
Global Certificate shall have the right, upon prior written notice to the
Depositor, the Trustee, the Depository and Euroclear or Clearstream, as
applicable, in the form of the Exchange Certificate attached hereto as Exhibit O
or Exhibit P, as applicable, to exchange all or a portion of such interest for
an equivalent interest in a Regulation S Global Certificate in connection with a
transfer of its interest therein to a transferee that is eligible to hold an
interest in a Regulation S Global Certificate as set forth herein. The Exchange
Certificate shall specify the denomination of the Certificates to be exchanged.
The Exchange Certificate shall also contain a representation that the transfer
is being made in a transaction meeting the requirements of Rule 144A or
Regulation S, as the case may be. Following receipt of any Exchange Certificate
by the Depositor or the Trustee, (i) the Trustee shall endorse the schedule to
any Global Certificate representing the Certificate or Certificates being
exchanged to reduce the stated principal or notional amount of such Global
Certificate by the denominations of the Certificate or Certificates for which
such exchange is to be made, and (ii) the Trustee shall endorse the schedule to
any Global Certificate representing the Certificate or Certificates for which
such exchange is to be made to increase the stated principal or notional amount
of such Global Certificate by the denominations of the Certificate or
Certificates being exchanged therefor. The form of the Exchange Certificate
shall be available from the Trustee.
(m) No transfer of any Class A-2FL or Class A-JFL Certificate
presented or surrendered for registration of transfer or exchange shall be made
unless the transfer or exchange is accompanied by a written instrument of
transfer and accompanied by IRS Form W-8ECI, W-8BEN, W-8IMY (and all appropriate
attachments) or W-9 in form satisfactory to the Trustee, duly executed by such
Certificateholder or his attorney duly authorized in writing (with copies
directly from such Certificateholders to the Class A-2FL Swap Counterparty or
Class A-JFL Swap Counterparty, as applicable). The Trustee shall promptly
forward any such IRS Form received by the Trustee to the Class A-2FL Swap
Counterparty or Class A-JFL Swap Counterparty, as applicable. Each such Holder
of a Class A-2FL or Class A-JFL Certificate, by its purchase of such a
Certificate, shall be deemed to consent to any IRS Form being so forwarded.
Section 5.03 Book-Entry Certificates.
(a) The Class A-1, Class A-2, Class A-2FL, Class A-3, Class A-AB,
Class A-4, Class A-1A, Class A-M, Class A-J, Class A-JFL, Class XW, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class O, Class P, Class Q and Class S Certificates shall
initially be issued as one or more Certificates registered in the name of the
Depository or its nominee and, except as provided in subsection (c) of this
Section 5.03, transfer of such Certificates may not be registered by the
Certificate Registrar unless such transfer is to a successor Depository that
agrees to hold such Certificates for the respective Certificate Owners with
Ownership Interests therein. Such Certificate Owners shall hold and transfer
their respective Ownership Interests in and to such Certificates through the
book-entry facilities of the Depository and, except as provided in subsection
(c) of this Section 5.03, shall not be entitled to fully registered, physical
Certificates ("Definitive Certificates") in respect of such Ownership Interests.
All transfers by Certificate Owners of their respective Ownership Interests in
the Book-Entry Certificates shall be made in accordance with the procedures
established by the Depository Participant or brokerage firm representing each
such Certificate Owner (in addition to the procedures established under this
Agreement and, if applicable, those of Euroclear and Clearstream). Each
Depository Participant shall only transfer the Ownership Interests in the
Book-Entry Certificates of Certificate Owners it represents or of brokerage
firms for which it acts as agent in accordance with the Depository's normal
procedures. Neither the Certificate Registrar nor the Trustee shall have any
responsibility to monitor or restrict the transfer of Ownership Interests in
Certificates through the book-entry facilities of the Depository, Euroclear or
Clearstream.
(b) The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the REMIC Administrator and the Certificate Registrar may for all
purposes, including the making of payments due on the Book-Entry Certificates,
deal with the Depository as the authorized representative of the Certificate
Owners with respect to such Certificates for the purposes of exercising the
rights of Certificateholders hereunder. The rights of Certificate Owners with
respect to the Book-Entry Certificates shall be limited to those established by
law and agreements between such Certificate Owners and the Depository
Participants and brokerage firms representing such Certificate Owners. Multiple
requests and directions from, and votes of, the Depository as Holder of the
Book-Entry Certificates with respect to any particular matter shall not be
deemed inconsistent if they are made with respect to different Certificate
Owners. The Trustee may establish a reasonable record date in connection with
solicitations of consents from or voting by Certificateholders and shall give
notice to the Depository of such record date. If any party hereto requests from
the Depository a list of the Depository Participants in respect of any Class or
Classes of the Book-Entry Certificates, the cost thereof shall be borne by the
party on whose behalf such request is made (but in no event shall any such cost
be borne by the Trustee).
(c) If (i)(A) the Depositor advises the Trustee and the Certificate
Registrar in writing that the Depository is no longer willing or able to
properly discharge its responsibilities with respect to any Class of the
Book-Entry Certificates, and (B) the Depositor is unable to locate a qualified
successor, or (ii) the Depositor notifies the Trustee, the Certificate Registrar
and DTC of its intent to terminate the book-entry system through DTC and, upon
receipt of notice of such intent from DTC, the Depository Participants holding
beneficial interests in the Book-Entry Certificates agree to initiate such
termination. Upon surrender to the Certificate Registrar of any Class of the
Book-Entry Certificates by the Depository, accompanied by registration
instructions for registration of transfer, the Trustee shall execute, and the
Certificate Registrar shall authenticate and deliver, the appropriate Definitive
Certificates to the Certificate Owners identified in such instructions. None of
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator or the Certificate Registrar shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions.
(d) The Book-Entry Certificates (i) shall be delivered by the
Certificate Registrar to the Depository, or pursuant to the Depository's
instructions, and shall be registered in the name of Cede & Co. and (ii) shall
bear a legend substantially to the following effect:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO
THE CERTIFICATE REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
The Book-Entry Certificates may be deposited with such other
Depository as the Certificate Registrar may from time to time designate, and
shall bear such legend as may be appropriate.
(e) Upon acceptance for exchange or transfer of a beneficial
interest in a Book-Entry Certificate for a Definitive Certificate, as provided
herein, the Certificate Registrar shall endorse on a schedule affixed to the
related Book-Entry Certificate (or on a continuation of such schedule affixed to
such Book-Entry Certificate and made a part thereof) an appropriate notation
evidencing the date of such exchange or transfer and a decrease in the
Denomination of such Book-Entry Certificate equal to the Denomination of such
Definitive Certificate issued in exchange therefor or upon transfer thereof.
(f) If a Holder of a Definitive Certificate wishes at any time to
transfer such Certificate to a Person who wishes to take delivery thereof in the
form of a beneficial interest in the Book-Entry Certificate, such transfer may
be effected only in accordance with Depository Rules and this Section 5.03(f).
Upon receipt by the Certificate Registrar at the Certificate Registrar's office
of (i) the Definitive Certificate to be transferred with an assignment and
transfer pursuant to this Section 5.03(f), (ii) written instructions given in
accordance with Depository Rules directing the Certificate Registrar to credit
or cause to be credited to another account a beneficial interest in the related
Book-Entry Certificate, in an amount equal to the Denomination of the Definitive
Certificate to be so transferred, (iii) a written order given in accordance with
the Depository Rules containing information regarding the account to be credited
with such beneficial interest, (iv) if the affected Certificate is a
Non-Registered Certificate an Investment Representation Letter from the
transferee to the effect that such transferee is a Qualified Institutional
Buyer, and (v) if delivery is to be taken in the form of a beneficial interest
in the Regulation S Global Certificate, a Regulation S Certificate, the
Certificate Registrar shall cancel such Definitive Certificate, execute and
deliver a new Definitive Certificate for the Denomination of the Definitive
Certificate not so transferred, registered in the name of the Holder or the
Holder's transferee (as instructed by the Holder), and the Certificate Registrar
shall instruct the Depository or the custodian holding such Book-Entry
Certificate on behalf of the Depository to increase the Denomination of the
related Book-Entry Certificate by the Denomination of the Definitive Certificate
to be so transferred, and to credit or cause to be credited to the account of
the Person specified in such instructions a corresponding Denomination of such
Book-Entry Certificate.
Each Regulation S Certificate shall include a certification to the
effect that: (i) (1) the offer of the Certificates was not made to a person in
the United States; and (2) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as
applicable, and the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; or (ii) with respect to
transfers made in reliance on Rule 144 under the Securities Act, that the
Certificates being transferred are not "restricted securities" as defined in
Rule 144 under the Securities Act.
(g) The Certificates initially sold in offshore transactions in
reliance on Regulation S shall be represented by a single Regulation S Global
Certificate for each such Class in fully registered form without interest
coupons, which will be deposited with the Trustee and registered in the name of
Cede & Co. as nominee of DTC. Beneficial interests in each Regulation S Global
Certificate may be held only through Euroclear or Clearstream.
No interest in the Regulation S Global Certificates may be held by
or transferred to a U.S. Person (as defined in Regulation S) except for
exchanges for a beneficial interest in a Domestic Global Certificate or a
Definitive Certificate as described in Section 5.02(m). Any beneficial interest
in a Regulation S Global Certificate that is transferred to a U.S. Person that
is an Institutional Accredited Investor (that is not a Qualified Institutional
Buyer) is required to be delivered in the form of a Definitive Certificate and
shall cease to be an interest in such Regulation S Global Certificate and,
thereafter, will be subject to all transfer restrictions and other procedures
applicable to Certificates in definitive form described in Section 5.03.
Notwithstanding the foregoing, no transfer of a beneficial interest in a
Regulation S Global Certificate to a Definitive Certificate pursuant to this
Section 5.03 shall be made prior to the Release Date. Certificates evidenced by
Regulation S Global Certificates shall be subject to certain restrictions on
transfer as set forth in Section 5.02 and shall bear a legend regarding such
restrictions described herein.
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (ii) there is delivered
to the Trustee and the Certificate Registrar such security or indemnity as may
reasonably be required by them to save each of them harmless, then, in the
absence of actual notice to the Trustee or the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute and the Certificate Registrar shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of the same Class and like Percentage Interest.
Upon the issuance of any new Certificate under this Section 5.04, the Trustee
and the Certificate Registrar may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee
and the Certificate Registrar) connected therewith. Any replacement Certificate
issued pursuant to this Section 5.04 shall constitute complete and indefeasible
evidence of ownership in the applicable REMIC created hereunder, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
Section 5.05 Persons Deemed Owners.
Prior to due presentment for registration of transfer, the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the person in whose name any Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions pursuant to Section 4.01
and for all other purposes whatsoever, and none of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the REMIC Administrator, the
Certificate Registrar or any agent of any of them shall be affected by notice to
the contrary.
Section 5.06 Certification by Certificate Owners.
(a) Each Certificate Owner is hereby deemed by virtue of its
acquisition of an Ownership Interest in the Book-Entry Certificates to agree to
comply with the applicable transfer requirements of Sections 5.02(b) and
5.02(c).
(b) To the extent that under the terms of this Agreement, it is
necessary to determine whether any Person is a Certificate Owner, the Trustee
shall make such determination based on a certificate of such Person that shall
specify, in reasonable detail satisfactory to the Trustee, the Class and
Certificate Principal Balance or Certificate Notional Amount, as the case may
be, of the Book-Entry Certificate beneficially owned, the value of such Person's
interest in such Certificate and any intermediaries through which such Person's
Ownership Interest in such Book-Entry Certificate is held; provided, however,
the Trustee shall not knowingly recognize such Person as a Certificate Owner if
such Person, to the knowledge of a Responsible Officer of the Trustee, acquired
its Ownership Interest in a Book-Entry Certificate in violation of Section
5.02(b) and/or Section 5.02(c), or if such Person's certification that it is a
Certificate Owner is in direct conflict with information obtained by the Trustee
from the Depository, Depository Participants, and/or indirect participating
brokerage firms for which a Depository Participant acts as agent, with respect
to the identity of a Certificate Owner. The Trustee shall exercise its
reasonable discretion in making any determination under this Section 5.06(b) and
shall afford any Person providing information with respect to its beneficial
ownership of any Certificates an opportunity to resolve any discrepancies
between the information provided and any other information available to the
Trustee.
Section 5.07 Regarding the Identification of Certain
Certificateholders.
(a) For purposes of determining the identity of the Holders of the
Non-Registered Certificates (except a Class V, Class R-I or Class R-II
Certificate) to whom certain reports and other information are required to be
delivered hereunder, the Trustee and the Master Servicer may rely, with respect
to any such Certificates outstanding in book-entry form, on a certification,
given to the Trustee and provided to the Master Servicer, by any Person that
such person is such a holder entitled to receive such reports or information
hereunder. With respect to the Registered Certificates and the Class V, Class
R-I and Class R-II Certificates, from time to time upon the request of the
Master Servicer, the Trustee shall provide the Master Servicer with a list of
the Certificateholders recorded in the Certificate Register.
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER AND THE REMIC
ADMINISTRATOR
Section 6.01 Liability of the Depositor, the Master Servicer, the
Special Servicer and the REMIC Administrator.
The Depositor, the Master Servicer, the Special Servicer and the
REMIC Administrator shall be liable in accordance herewith only to the extent of
the respective obligations specifically imposed upon and undertaken by the
Depositor, the Master Servicer, the Special Servicer and the REMIC Administrator
herein.
Section 6.02 Merger, Consolidation or Conversion of the Depositor,
the Master Servicer, the Special Servicer or the REMIC Administrator.
(a) Subject to the following paragraph, the Depositor, the Master
Servicer, the Special Servicer and the REMIC Administrator each will keep in
full effect its existence, rights and franchises as a corporation or other
business organization under the laws of the jurisdiction of its organization,
and each will obtain and preserve its qualification to do business as a foreign
corporation or otherwise in each jurisdiction in which such qualification is or
shall be necessary to protect the validity and enforceability of this Agreement,
the Certificates or any of the Mortgage Loans and to perform its respective
duties under this Agreement.
(b) The Depositor, the Master Servicer, the Special Servicer and the
REMIC Administrator each may be merged or consolidated with or into any Person,
or transfer all or substantially all of its assets (which, as to the Master
Servicer and the Special Servicer, may be limited to all or substantially all of
its assets relating to the business of mortgage loan servicing) to any Person,
in which case any Person resulting from any merger or consolidation to which the
Depositor, the Master Servicer, the Special Servicer or the REMIC Administrator
shall be a party, or any Person succeeding to the business of the Depositor, the
Master Servicer, the Special Servicer or the REMIC Administrator, shall be the
successor of the Depositor, the Master Servicer, the Special Servicer or the
REMIC Administrator, as the case may be, hereunder, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding; provided, however, no successor
or surviving Person shall succeed to the rights of the Master Servicer or the
Special Servicer, unless such succession will not result in any downgrade,
qualification (if applicable) or withdrawal of the rating then assigned by any
Rating Agency to any Class of Certificates or Companion Loan Securities (as
confirmed in writing).
In accordance with Section 11.02, The Master Servicer and the
Special Servicer and such successor or surviving Person shall notify the
Depositor and the Trustee of any such merger, conversion or consolidation at
least two Business Days prior to the effective date thereof and shall provide
the Depositor and the Trustee with all information reasonably requested by the
Depositor to comply with its reporting obligation under Item 6.02 of Form 8-K
not later than the effective date of such merger, conversion or consolidation.
Section 6.03 Limitation on Liability of the Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator and Others.
(a) None of the Depositor, the Master Servicer, the Special
Servicer, the REMIC Administrator or any director, officer, employee or agent of
any of the foregoing shall be under any liability to the Trust, the
Certificateholders or any Companion Loan Holder (in the case of a Whole Loan)
for any action taken, or not taken, in good faith pursuant to this Agreement, or
for errors in judgment; provided, however, this provision shall not protect the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator or
any such other Person against any breach of a representation or warranty made
herein, or against any expense or liability specifically required to be borne
thereby pursuant to the terms hereof, or against any liability that would
otherwise be imposed by reason of willful misfeasance, bad faith or negligence
in the performance of obligations or duties hereunder, or by reason of negligent
or reckless disregard of such obligations and duties. The Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator and any director,
manager, member, officer, employee or agent (including Sub-Servicers) of any of
the foregoing may rely in good faith on any document of any kind that, prima
facie, is properly executed and submitted by any Person respecting any matters
arising hereunder. The Depositor, the Master Servicer, the Special Servicer, the
REMIC Administrator and any director, manager, member, officer, employee or
agent (including Sub-Servicers) of any of the foregoing shall be indemnified and
held harmless by the Trust against any loss, liability or expense, including
reasonable attorneys' fees, expenses of counsel and expenses of litigation,
incurred in connection with any claims or legal action relating to this
Agreement, the Certificates or any asset of the Trust, other than any loss,
liability or expense: (i) specifically required to be borne by such Person
pursuant to the terms hereof, including, without limitation, Section 10.01(h);
or (ii) that was incurred in connection with claims against such party resulting
from (A) any breach of a representation or warranty made herein by such party,
(B) willful misfeasance, bad faith, recklessness or negligence in the
performance of obligations or duties hereunder by such party, or from negligent
or reckless disregard of such obligations or duties, or (C) any violation by
such party of any state or federal securities law. None of the Depositor, the
Master Servicer, the Special Servicer or the REMIC Administrator shall be under
any obligation to appear in, prosecute or defend any legal action unless such
action is related to its respective duties under this Agreement and, except in
the case of a legal action contemplated by Section 3.22, in its opinion does not
involve it in any ultimate expense or liability; provided, however, the
Depositor, the Master Servicer, the Special Servicer or the REMIC Administrator
may in its discretion undertake any such action that it may deem necessary or
desirable with respect to the enforcement and/or protection of the rights and
duties of the parties hereto and the interests of the Certificateholders, or if
a Serviced Whole Loan is affected, the interests of the Certificateholders and
the related Companion Loan Holder (as a collective whole and, in the case of a
Serviced Whole Loan that is an A/B Whole Loan, taking into account the
subordination of the related A/B Companion Loan); provided, however, if a Whole
Loan and/or a Companion Loan Holder is involved, such expenses, costs and
liabilities shall be payable out of the related Whole Loan Custodial Account and
shall also be payable out of the Certificate Account if (A) amounts on deposit
in the related Whole Loan Custodial Account are insufficient therefor and (B)
either (i) such expenses, costs and liabilities do not relate solely to such
Companion Loan or (ii) if such expenses, costs and liabilities relate solely to
such Companion Loan, only to the extent of deposits in the Certificate Account
related directly to the Whole Loan. In such event, the legal expenses and costs
of such action, and any liability resulting therefrom, shall be expenses, costs
and liabilities of the Trust, and the Depositor, the Master Servicer, the
Special Servicer and the REMIC Administrator each shall be entitled to the
direct payment of such expenses or to be reimbursed therefor from the
Certificate Account as provided in Section 3.05(a) (or, if and to the extent the
matter relates solely to the Companion Loan related to a Whole Loan, out of the
related Whole Loan Custodial Account and out of the Certificate Account to the
extent of deposits therein related directly to the Whole Loan). For the
avoidance of doubt, such expenses, costs and liabilities shall not be deemed to
relate solely to the Companion Loan related to a Whole Loan for the sole reason
that the related action was instituted by or against the related Companion Loan
Holder.
(b) The Beacon Seattle & DC Portfolio Master Servicer, Beacon
Seattle & DC Portfolio Special Servicer, Beacon Seattle & DC Portfolio Depositor
and the Beacon Seattle & DC Portfolio Trustee, and any of their respective
directors, officers, employees or agents (collectively, the "Beacon Seattle & DC
Portfolio Indemnified Parties"), shall be indemnified by the Trust and held
harmless against the Trust's pro rata share (subject to the Beacon Seattle & DC
Portfolio Intercreditor Agreement) of any and all claims, losses, damages,
penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments, and any other costs, liabilities, fees and expenses incurred in
connection with any legal action relating to the Beacon Seattle & DC Portfolio
Whole Loan under the Beacon Seattle & DC Portfolio Pooling Agreement or this
Agreement (but excluding any such losses allocable to any Beacon Seattle & DC
Portfolio Companion Loan), reasonably requiring the use of counsel or the
incurring of expenses other than any losses incurred by reason of any Beacon
Seattle & DC Portfolio Indemnified Party's willful misfeasance, bad faith or
negligence in the performance of duties or by reason of negligent disregard of
obligations and duties under the Beacon Seattle & DC Portfolio Pooling
Agreement. The indemnification provided herein shall survive the termination of
this Agreement and the termination or resignation of the Beacon Seattle & DC
Portfolio Master Servicer, Beacon Seattle & DC Portfolio Trustee and the Beacon
Seattle & DC Portfolio Special Servicer.
(c) The 000 Xxxxxxxxx Xxxxxx Master Servicer, the 000 Xxxxxxxxx
Xxxxxx Special Servicer, the 000 Xxxxxxxxx Xxxxxx Depositor and the 000
Xxxxxxxxx Xxxxxx Trustee, and any of their respective directors, officers,
employees or agents (collectively, the "575 Lexington Avenue Indemnified
Parties"), shall be indemnified by the Trust and held harmless against the
Trust's pro rata share (subject to the 000 Xxxxxxxxx Xxxxxx Intercreditor
Agreement) of any and all claims, losses, damages, penalties, fines,
forfeitures, reasonable legal fees and related costs, judgments, and any other
costs, liabilities, fees and expenses incurred in connection with any legal
action relating to the 000 Xxxxxxxxx Xxxxxx Pari Passu Whole Loan under the 000
Xxxxxxxxx Xxxxxx Pooling Agreement or this Agreement (but excluding any such
losses allocable to the 000 Xxxxxxxxx Xxxxxx Pari Passu Companion Loan),
reasonably requiring the use of counsel or the incurring of expenses other than
any losses incurred by reason of any 000 Xxxxxxxxx Xxxxxx Indemnified Party's
willful misfeasance, bad faith or negligence in the performance of duties or by
reason of negligent disregard of obligations and duties under the 000 Xxxxxxxxx
Xxxxxx Pooling Agreement. The indemnification provided herein shall survive the
termination of this Agreement and the termination or resignation of the 000
Xxxxxxxxx Xxxxxx Master Servicer, the 000 Xxxxxxxxx Xxxxxx Trustee and the 000
Xxxxxxxxx Xxxxxx Special Servicer.
Section 6.04 Master Servicer, Special Servicer and REMIC
Administrator Not to Resign.
None of the Master Servicer, the Special Servicer or the REMIC
Administrator shall be permitted to resign from the obligations and duties
hereby imposed on it, except (i) upon the appointment of, and the acceptance of
such appointment by, a successor thereto that is reasonably acceptable to the
Trustee and the Directing Certificateholder and the receipt by the Trustee of
written confirmation from each and every Rating Agency to the effect that such
resignation and appointment will not result in the downgrade, qualification (if
applicable) or withdrawal of any rating then assigned by such Rating Agency to
any Class of Certificates or Companion Loan Securities or (ii) upon
determination that such obligations and duties hereunder are no longer
permissible under applicable law or are in material conflict by reason of
applicable law with any other activities carried on by it, the other activities
of the Master Servicer, Special Servicer or REMIC Administrator, as the case may
be, so causing such a conflict being of a type and nature carried on by the
Master Servicer, Special Servicer or REMIC Administrator, as the case may be, at
the date of this Agreement. Any such determination of the nature described in
clause (ii) of the preceding sentence permitting the resignation of the Master
Servicer, the Special Servicer or the REMIC Administrator, as the case may be,
shall be evidenced by an Opinion of Counsel to such effect, which shall be
rendered by Independent counsel, be addressed and delivered to the Trustee and
the Rating Agencies and be paid for by the resigning party. No such resignation
for either reason shall become effective until the Trustee or other successor
shall have assumed the responsibilities and obligations of the resigning party
hereunder. All costs and expenses of the Trustee and the Trust (including,
without limitation, any costs or expenses of any party hereto reimbursable out
of the Trust Fund) in connection with any such resignation (including, without
limitation, any requisite transfer of servicing) shall be paid for, as incurred,
by the resigning party.
Consistent with the foregoing, none of the Master Servicer, the
Special Servicer or the REMIC Administrator shall be permitted, except as
expressly provided herein, to assign or transfer any of its rights, benefits or
privileges hereunder to any other Person, or delegate to or subcontract with, or
authorize or appoint any other Person to perform any of the duties, covenants or
obligations to be performed by it hereunder. If, pursuant to any provision
hereof, the duties of the Master Servicer, the Special Servicer or the REMIC
Administrator are transferred to a successor thereto, then, subject to Section
3.11(a) and Section 3.22, the entire amount of compensation payable to the
Master Servicer, the Special Servicer or the REMIC Administrator, as the case
may be, pursuant hereto shall thereafter be payable to such successor.
Section 6.05 Rights of the Depositor and the Trustee in Respect of
the Master Servicer, the Special Servicer and the REMIC Administrator.
The Master Servicer, the Special Servicer and the REMIC
Administrator each shall afford the Depositor and the Trustee, upon reasonable
notice, during normal business hours access to all records maintained by the
Master Servicer, the Special Servicer or the REMIC Administrator, as the case
may be, in respect of its rights and obligations hereunder and access to such of
its officers as are responsible for such obligations. Upon reasonable request,
the Master Servicer, the Special Servicer and the REMIC Administrator each shall
furnish the Depositor and the Trustee with its most recent financial statements,
or in the case of the Special Servicer, publicly available financial statements
of its corporate parent, and such other publicly available information directly
related to the servicing of the Loans or to its ability to perform its
obligations hereunder as it possesses, and that it is not prohibited by law or,
to the extent applicable, binding obligations to third parties with respect to
confidentiality from disclosing, regarding its business, affairs, property and
condition, financial or otherwise; provided that neither the Depositor nor the
Trustee may disclose the contents of any information that is not available
publicly to non-affiliated third parties (other than their duly authorized
representatives, which include without limitation attorneys and/or accountants)
unless the Depositor or the Trustee, as applicable, is required to do so under
applicable securities law or is compelled to do so as a matter of law. The
Depositor may, but is not obligated to, enforce the obligations of the Master
Servicer, the Special Servicer and the REMIC Administrator hereunder and may,
but is not obligated to, perform, or cause a designee to perform, any defaulted
obligation of the Master Servicer, the Special Servicer or the REMIC
Administrator hereunder or, in connection with a default thereby, exercise the
rights of the Master Servicer, the Special Servicer or the REMIC Administrator
hereunder; provided, however, none of the Master Servicer, the Special Servicer
or the REMIC Administrator shall be relieved of any of its obligations hereunder
by virtue of such performance by the Depositor or its designee. The Depositor
shall not have any responsibility or liability for any action or failure to act
by the Master Servicer, the Special Servicer or the REMIC Administrator and is
not obligated to supervise the performance of the Master Servicer, the Special
Servicer or the REMIC Administrator under this Agreement or otherwise.
ARTICLE VII
DEFAULT
Section 7.01 Events of Default.
(a) "Event of Default", wherever used herein, unless the context
otherwise requires, means any one of the following events:
(i) any failure by the Master Servicer (A) to deposit into the
Certificate Account or a Whole Loan Custodial Account any amount required
to be so deposited under this Agreement that continues unremedied for
three Business Days following the date on which such deposit was first
required to be made, but in no event later than the Master Servicer
Remittance Date before the related Distribution Date, or (B) to deposit
into, or to remit to the Trustee for deposit into, the Distribution
Account on any Master Servicer Remittance Date, the full amount of any
Master Servicer Remittance Amount and Withheld Amounts, respectively,
required to be so deposited or remitted under this Agreement on such date
or (C) any failure by the Master Servicer to remit to the related
Companion Loan Holder, as and when required by this Agreement or any
related Intercreditor Agreement, any amount required to be so remitted; or
(ii) any failure by the Special Servicer to deposit into, or to
remit to the Master Servicer for deposit into, the Certificate Account or
a Whole Loan Custodial Account or the applicable REO Account any amount
required to be so deposited or remitted under this Agreement that
continues unremedied for two Business Days following the date on which
such deposit or remittance was first required to be made, but in no event
later than two Business Days before the related Distribution Date; or
(iii) any failure by the Master Servicer to remit to the Trustee for
deposit into the Distribution Account, on any Master Servicer Remittance
Date, the full amount of P&I Advances required to be made on such date
unless wired by 10:00 a.m. on the Distribution Date; provided, however, if
the Master Servicer fails to make any deposit contemplated by this Section
7.01(a)(iii), including any P&I Advance, which deposit is required to be
made by the Master Servicer on any Master Servicer Remittance Date
(without regard to any grace period), then the Master Servicer shall pay
to the Trustee, for the account of the Trustee, interest on such late
remittance at the Reimbursement Rate from and including such Master
Servicer Remittance Date to but excluding the related Distribution Date;
or
(iv) any failure by the Master Servicer to timely make any Servicing
Advance required to be made by it pursuant to this Agreement, which
failure continues unremedied for a period of three Business Days following
the date on which notice shall have been given to the Master Servicer by
the Trustee or by any other party to this Agreement, as provided in
Section 3.11(f); or
(v) any failure by the Special Servicer to timely direct the Master
Servicer to make any Servicing Advance (including any Emergency Advance)
required to be made by the Master Servicer at its direction pursuant to
this Agreement, which failure is not remedied by providing direction to
the Master Servicer within three Business Days following the date on which
notice has been given to the Special Servicer by the Trustee as provided
in Section 3.11(f); or
(vi) any failure on the part of the Master Servicer or the Special
Servicer duly to observe or perform in any material respect any other of
the covenants or agreements thereof contained in this Agreement, which
failure continues unremedied for a period of 30 days after the date on
which written notice of such failure, requiring the same to be remedied,
shall have been given to the Master Servicer or the Special Servicer, as
the case may be, by any other party hereto, or to the Master Servicer or
the Special Servicer, as the case may be, with a copy to each other party
hereto, by the Holders of Certificates entitled to at least 25% of the
Voting Rights; provided, however, if such covenant or agreement is capable
of being cured and the Master Servicer or Special Servicer, as applicable,
is diligently pursuing such cure, such 30-day period shall be extended for
an additional 60 days; or
(vii) any failure on the part of the REMIC Administrator duly to
observe or perform in any material respect any of the covenants or
agreements thereof contained in this Agreement, which failure continues
unremedied for a period of 30 days after the date on which written notice
of such failure, requiring the same to be remedied, shall have been given
to the REMIC Administrator by any other party hereto, or to the REMIC
Administrator, with a copy to each other party hereto, by the Holders of
Certificates entitled to at least 25% of the Voting Rights; provided,
however, if such covenant or agreement is capable of being cured and the
REMIC Administrator is diligently pursuing such cure, such 30-day period
shall be extended for an additional 60 days; or
(viii) any breach on the part of the Master Servicer, the Special
Servicer or the REMIC Administrator of any representation or warranty
thereof contained in this Agreement that materially and adversely affects
the interests of any Class of Certificateholders and that continues
unremedied for a period of 30 days after the date on which notice of such
breach, requiring the same to be remedied, shall have been given to the
Master Servicer, the Special Servicer or the REMIC Administrator, as the
case may be, by any other party hereto, or to the Master Servicer, the
Special Servicer or the REMIC Administrator, as the case may be, with a
copy to each other party hereto, by the Holders of Certificates entitled
to at least 25% of the Voting Rights; provided, however, if such
representation or warranty is capable of being cured and the Master
Servicer or Special Servicer, as applicable, is diligently pursuing such
cure, such 30-day period shall be extended for an additional 60 days; or
(ix) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding up or liquidation of its affairs, shall have been entered against
the Master Servicer, the Special Servicer or the REMIC Administrator and
such decree or order shall have remained in force undischarged or unstayed
for a period of 60 days; or
(x) the Master Servicer, the Special Servicer or the REMIC
Administrator shall consent to the appointment of a conservator, receiver,
liquidator, trustee or similar official in any bankruptcy, insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings of or relating to it or of or relating to all or substantially
all of its property; or
(xi) the Master Servicer, the Special Servicer or the REMIC
Administrator shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable bankruptcy, insolvency or reorganization statute, make an
assignment for the benefit of its creditors, voluntarily suspend payment
of its obligations, or take any corporate action in furtherance of the
foregoing; or
(xii) Fitch provides notice to the Master Servicer or the Special
Servicer, as applicable, to the effect that the rating or ratings on one
or more Classes of Certificates will be the subject of a downgrade or
withdrawal, citing servicing concerns relating to the Master Servicer or
the Special Servicer, as the case may be, as the sole or a material factor
in such action; provided, however, the Master Servicer or Special
Servicer, as applicable shall have 60 days to resolve such matters to the
satisfaction of Fitch (or such longer time period as may be agreed in
writing by Fitch) prior to the downgrade of any Class of Certificates and
in such case, such notice from Fitch shall not be deemed to be an Event of
Default;
(xiii) either the Master Servicer or the Special Servicer is no
longer listed on S&P's Select Servicer List as a U.S. Commercial Mortgage
Master Servicer or a U.S. Commercial Mortgage Special Servicer, as
applicable, and is not relisted thereon within 60 days.
(xiv) the Master Servicer shall no longer be rated "CMS3" or higher
by Fitch or the Special Servicer shall no longer be rated "CSS3" or higher
by Fitch, and, in each case, that rating is not restored within 60 days
after the subject downgrade or withdrawal.
Each Event of Default listed as items (iv) through (xiv) of this Section 7.01(a)
shall constitute an Event of Default only with respect to the relevant party;
provided that if a single entity acts or any two or more Affiliates act as
Master Servicer, Special Servicer and REMIC Administrator, or in any two or more
of the foregoing capacities, an Event of Default in one capacity (other than an
event described in clause (xii), (xiii) or (xiv)) of this Section 7.01(a)) will
constitute an Event of Default in each such capacity.
(b) If any Event of Default with respect to the Master Servicer or
the Special Servicer (in either case, for purposes of this Section 7.01(b), the
"Defaulting Party") shall occur and be continuing, then, and in each and every
such case, so long as the Event of Default shall not have been remedied, the
Depositor or the Trustee may, and (other than with respect to the Events of
Default listed in clauses (xii), (xiii) and (xiv) of Section 7.01(a)) at the
written direction of the Holders of Certificates entitled to at least 51% of the
Voting Rights, or if the relevant Event of Default is the one described in
clauses (ix), (x) or (xi) of Section 7.01(a), the Trustee shall, terminate, by
notice in writing to the Defaulting Party (with a copy of such notice to each
other party hereto), all of the rights and obligations (subject to Section 3.11
and Section 6.03, accruing from and after such notice) of the Defaulting Party
under this Agreement and in and to the Loans and the proceeds thereof (other
than as a Holder of a Certificate or a Companion Loan Holder (in the case of a
Whole Loan)). With respect to each of the Event of Defaults listed in clauses
(xii), (xiii) or (xiv) of Section 7.01(a), the Trustee shall provide written
notice of such Event of Default to each Certificateholder and request written
direction of such Certificateholders whether they desire to terminate the
Defaulting Party; if no such direction is received from the Directing
Certificateholder or Holders of Certificates entitled to vote at least 51% of
the Voting Rights within ten Business Days after delivery of such notice by the
Trustee, and the Trustee has not elected pursuant to the preceding sentence to
terminate the Defaulting Party, the Defaulting Party will not be terminated by
reason of such Event of Default. From and after the receipt by the Defaulting
Party of such written notice, all authority and power of the Defaulting Party
under this Agreement, whether with respect to the Certificates (other than as a
Holder of any Certificate) or the Loans or otherwise, shall pass to and be
vested in the Trustee pursuant to and under this Section, and, without
limitation, the Trustee is hereby authorized and empowered to execute and
deliver, on behalf of and at the expense of the Defaulting Party, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Loans and related documents, or otherwise. The
Master Servicer and the Special Servicer each agree that, if it is terminated
pursuant to this Section 7.01(b), it shall promptly (and in any event no later
than ten Business Days subsequent to its receipt of the notice of termination)
provide the Trustee with all documents and records reasonably requested thereby
to enable the Trustee to assume the Master Servicer's or Special Servicer's, as
the case may be, functions hereunder, and shall cooperate with the Trustee in
effecting the termination of the Master Servicer's or Special Servicer's, as the
case may be, responsibilities and rights hereunder, including, without
limitation, the transfer within two Business Days to the Trustee for
administration by it of all cash amounts that shall at the time be or should
have been credited by the Master Servicer to the Certificate Account, the
Distribution Account, any Servicing Account or any Reserve Account (if it is the
Defaulting Party) or by the Special Servicer to the REO Account, the Certificate
Account, any Servicing Account or any Reserve Account (if it is the Defaulting
Party) or thereafter be received with respect to the Loans and any REO
Properties (provided, however, the Master Servicer and the Special Servicer each
shall, if terminated pursuant to this Section 7.01(b) or Section 3.23, continue
to be obligated for or entitled to receive all amounts accrued or owing by or to
it under this Agreement on or prior to the date of such termination, whether in
respect of Advances or otherwise, and it and its directors, officers, employees
and agents shall continue to be entitled to the benefits of Section 6.03
notwithstanding any such termination). All costs and expenses of the Trustee and
the Trust (including, without limitation, any costs and expenses of any party
hereto reimbursable out of the Trust Fund) in connection with the termination of
the Master Servicer or Special Servicer, as applicable, under this Section
7.01(b) (including, without limitation, the requisite transfer of servicing)
shall be paid for, as incurred, by the Defaulting Party.
Notwithstanding the first paragraph of Section 7.01(b) and Section
7.04, if (i) an Event of Default on the part of the Master Servicer remains
unremedied and materially and adversely affects only a Pari Passu Companion
Loan, (ii) the Master Servicer fails to make any payment on a Pari Passu
Companion Loan by the third Business Day following the date required under the
terms of this Agreement, which failure has not been remedied or (iii) any
qualification, downgrade or withdrawal by any Rating Agency of any class of
Companion Loan Securities occurs solely as a result of an action of the Master
Servicer, then the Master Servicer may not be terminated but the holder of the
related Pari Passu Companion Loan, as applicable, or the related trustee under
the Non-Serviced Pooling and Servicing Agreement, acting at the direction of the
related controlling class representative for that securitization, shall be
entitled to direct the Trustee to require the Master Servicer to appoint a
sub-servicer solely with respect to the related Whole Loan (or if the related
Whole Loan is currently being sub-serviced, to replace the current sub-servicer,
but only if such current sub-servicer is in default under the related
sub-servicing agreement). The appointment (or replacement) of a sub-servicer
with respect to any Whole Loan that includes a Non-Serviced Companion Loan shall
in any event be subject to confirmation from each rating agency that such
appointment would not result in the downgrade, withdrawal or qualification of
the then current ratings on any class of outstanding Certificates and any class
of Companion Loan Securities. A replacement sub-servicer shall be selected
jointly by the Directing Certificateholder and the holder of the related Pari
Passu Companion Loan (or the related controlling class representative, as
applicable); provided that if the Directing Certificateholder and the holder of
the related Pari Passu Companion Loan (or the related controlling class
representative) are not able to agree on a sub-servicer within 45 days after the
date on which the Trustee was directed to appoint a sub-servicer or replace the
current sub-servicer, such sub-servicer shall be selected by the Directing
Certificateholder. Any such sub-servicer under this paragraph shall meet the
eligibility requirements of Section 7.02 and the eligibility requirements of the
related Non-Serviced Pooling and Servicing Agreement. Any appointment of a
sub-servicer in accordance with this paragraph shall be subject to the receipt
of a Rating Agency confirmation with respect to the Certificates and the
Companion Loan Securities. In addition, if the Trustee appoints a sub-servicer
solely with respect to the related Whole Loan, the Master Servicer shall not be
liable for any losses incurred due to the actions of such sub-servicer.
(c) If any Event of Default with respect to the REMIC Administrator
shall occur and be continuing, then, and in each and every such case, so long as
the Event of Default shall not have been remedied, the Depositor or the Trustee
may, and at the written direction of the Holders of Certificates entitled to at
least 51% of the Voting Rights, the Trustee (or, if the Trustee is also the
REMIC Administrator, the Master Servicer) shall, terminate, by notice in writing
to the REMIC Administrator (with a copy to each of the other parties hereto),
all of the rights and obligations of the REMIC Administrator under this
Agreement. From and after the receipt by the REMIC Administrator of such written
notice (or if the Trustee is also the REMIC Administrator, from and after such
time as another successor appointed as contemplated by Section 7.02 accepts such
appointment), all authority and power of the REMIC Administrator under this
Agreement shall pass to and be vested in the Trustee (or such other successor)
pursuant to and under this Section 7.01, and, without limitation, the Trustee
(or such other successor) is hereby authorized and empowered to execute and
deliver, on behalf of and at the expense of the REMIC Administrator, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination. The REMIC Administrator agrees
promptly (and in any event no later than ten Business Days subsequent to its
receipt of the notice of the termination) to provide the Trustee (or, if the
Trustee is also the REMIC Administrator, such other successor appointed as
contemplated by Section 7.02) with all documents and records requested thereby
to enable the Trustee (or such other successor) to assume the REMIC
Administrator's functions hereunder, and to cooperate with the Trustee (or such
other successor) in effecting the termination of the REMIC Administrator's
responsibilities and rights hereunder (provided, however, the REMIC
Administrator shall continue to be obligated for or entitled to receive all
amounts accrued or owing by or to it under this Agreement on or prior to the
date of such termination, and it and its directors, officers, employees and
agents shall continue to be entitled to the benefits of Section 6.03
notwithstanding any such termination).
(d) Notwithstanding Section 7.01(b), if the Master Servicer receives
a notice of termination under Section 7.01(b) solely due to an Event of Default
under Section 7.01(a)(xii) (xiii) or (xiv) and if the Master Servicer provides
the Trustee with the appropriate "request for proposal" materials within the
five Business Days after such termination, then such Master Servicer shall
continue to serve as Master Servicer, if requested to do so by the Trustee, and
the Trustee shall promptly thereafter (using such "request for proposal"
materials provided by the terminated Master Servicer) solicit good faith bids
for the rights to master service the Loans under this Agreement from at least
three Persons qualified to act as Master Servicer hereunder in accordance with
Section 6.02 and Section 7.02 for which the Trustee has received written
confirmation that the appointment of such person would not result in the
downgrade, withdrawal or qualification of a current rating on any of the
Certificates and that are reasonably acceptable to the Directing
Certificateholder (any such Person so qualified, a "Qualified Bidder") or, if
three Qualified Bidders cannot be located, then from as many Persons as the
Trustee can determine are Qualified Bidders; provided that, at the Trustee's
request, the terminated Master Servicer shall supply the Trustee with the names
of Persons from whom to solicit such bids; and provided, further, the Trustee
shall not be responsible if less than three or no Qualified Bidders submit bids
for the right to master service the Loans under this Agreement. Any "Qualified
Bidder" referenced hereunder shall be reasonably acceptable to the Directing
Certificateholder. The bid proposal shall require any Successful Bidder (as
defined below), as a condition of such bid, to enter into this Agreement as
successor Master Servicer, and to agree to be bound by the terms hereof, within
45 days after the termination of Master Servicer. The Master Servicer shall
continue to serve in such capacity hereunder until a successor thereto is
selected in accordance with this Section 7.01(d) or the expiration of 45 days
after the Master Servicer's receipt of notice of termination, whichever occurs
first. The Trustee shall solicit bids (i) on the basis of such successor Master
Servicer retaining all Sub-Servicers to continue the primary servicing of the
Loans pursuant to the terms of the respective Sub-Servicing Agreements and to
enter into a Sub-Servicing Agreement with the terminated Master Servicer to
service each of the Loans not subject to a Sub-Servicing Agreement at a
servicing fee rate per annum equal to the Master Servicing Fee Rate minus 2.5
basis points per Loan serviced (each, a "Servicing Retained Bid") and (ii) on
the basis of terminating each Sub-Servicing Agreement and Sub-Servicer that it
is permitted to terminate in accordance with Section 3.22 (each, a "Servicing
Released Bid"). The Trustee shall select the Qualified Bidder with the highest
cash Servicing Retained Bid (or, if none, the highest cash Servicing Released
Bid) (the "Successful Bidder") to act as successor Master Servicer hereunder.
The Trustee shall direct the Successful Bidder to enter into this Agreement as
successor Master Servicer pursuant to the terms hereof (and, if the successful
bid was a Servicing Retained Bid, to enter into a Sub-Servicing Agreement with
the terminated Master Servicer as contemplated above), no later than 45 days
after the termination of the Master Servicer.
(e) Upon the assignment and acceptance of the master servicing
rights hereunder to and by the Successful Bidder, the Trustee shall remit or
cause to be remitted (i) if the successful bid was a Servicing Retained Bid, to
the terminated Master Servicer the amount of such cash bid received from the
Successful Bidder (net of "out-of-pocket" expenses incurred in connection with
obtaining such bid and transferring servicing) and (ii) if the successful bid
was a Servicing Released Bid, to the Master Servicer and each terminated
Sub-Servicer its respective Bid Allocation.
(f) If the Successful Bidder has not entered into this Agreement as
successor Master Servicer within 45 days after the Trustee was appointed as
successor Master Servicer or no Successful Bidder was identified within such
45-day period, the terminated Master Servicer shall reimburse the Trustee for
all reasonable "out-of-pocket" expenses incurred by the Trustee in connection
with such bid process and the Trustee shall have no further obligations under
this Section 7.01(f). The Trustee thereafter may act or may select a successor
to act as Master Servicer hereunder in accordance with Section 7.02.
Section 7.02 Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer, the Special Servicer or
the REMIC Administrator resigns pursuant to clause (ii) of the first sentence of
Section 6.04 or receives a notice of termination pursuant to Section 7.01, the
Trustee shall be the successor in all respects to the Master Servicer, the
Special Servicer or (unless it has also been acting as such) the REMIC
Administrator, as the case may be, in its capacity as such under this Agreement
and the transactions set forth or provided for herein and shall be subject to
all the responsibilities, duties and liabilities relating thereto and arising
thereafter placed on the Master Servicer, the Special Servicer or the REMIC
Administrator, as the case may be, by the terms and provisions hereof,
including, without limitation, if the Master Servicer is the resigning or
terminated party, the Master Servicer's obligation to make P&I Advances;
provided that any failure to perform such duties or responsibilities caused by
the Master Servicer's, the Special Servicer's or the REMIC Administrator's, as
the case may be, failure to cooperate or to provide information or monies
required by Section 7.01 shall not be considered a default by the Trustee
hereunder. Neither the Trustee nor any other successor shall be liable for any
of the representations and warranties of the resigning or terminated party or
for any losses incurred by the resigning or terminated party pursuant to Section
3.06 hereunder nor shall the Trustee nor any other successor be required to
purchase any Loan hereunder. As compensation therefor, the Trustee shall be
entitled to all fees and other compensation (subject to Section 3.11) that the
resigning or terminated party would have been entitled to for future services
rendered if the resigning or terminated party had continued to act hereunder.
Notwithstanding the above, the Trustee may, if it shall be unwilling to so act,
or shall, if it is unable to so act, or is not approved by each and every Rating
Agency as an acceptable master servicer or special servicer, as the case may be,
of commercial mortgage loans; or if the Directing Certificateholder or if the
Holders of Certificates entitled to at least 51% of the Voting Rights so request
in writing to the Trustee; or if the REMIC Administrator is the resigning or
terminated party and the Trustee had been acting in such capacity, promptly
appoint, or petition a court of competent jurisdiction to appoint, any
established and qualified institution as the successor to the Master Servicer,
the Special Servicer or the REMIC Administrator, as the case may be, hereunder
in the assumption of all or any part of the responsibilities, duties or
liabilities of the Master Servicer, the Special Servicer or the REMIC
Administrator, as the case may be, hereunder; provided, that in the case of a
successor Master Servicer, such successor has been approved by the Directing
Certificateholder, which consent with respect to the Master Servicer shall not
be unreasonably withheld or delayed; provided that such appointment does not
result in the downgrading, qualification (if applicable) or withdrawal of any
rating then assigned by any Rating Agency to any Class of Certificates or
Companion Loan Securities (as evidenced by written confirmation thereof from
each Rating Agency); provided, further, in the case of a resigning or terminated
Special Servicer, such appointment shall be subject to the rights of the
Majority Certificateholder of the Controlling Class to designate a successor
pursuant to Section 3.23. No appointment of a successor to the Master Servicer,
the Special Servicer or the REMIC Administrator hereunder shall be effective
until the assumption of the successor to such party of all its responsibilities,
duties and liabilities hereunder. Pending appointment of a successor to the
Master Servicer, the Special Servicer or the REMIC Administrator hereunder, the
Trustee shall act in such capacity as hereinabove provided. Notwithstanding the
above, the Trustee shall, if the Master Servicer is the resigning or terminated
party and the Trustee is prohibited by law or regulation from making P&I
Advances, promptly appoint any established mortgage loan servicing institution
that has a net worth of not less than $15,000,000 and is otherwise acceptable to
each Rating Agency (as evidenced by written confirmation therefrom to the effect
that the appointment of such institution would not cause the qualification,
downgrading or withdrawal of the then current rating on any Class of
Certificates or Companion Loan Securities), as the successor to the Master
Servicer hereunder in the assumption of all or any part of the responsibilities,
duties or liabilities of the Master Servicer hereunder (including, without
limitation, the obligation to make P&I Advances), which appointment will become
effective immediately. Subject to Section 3.11 and in connection with any such
appointment and assumption described herein, the Trustee may make such
arrangements for the compensation of such successor out of payments on or in
respect of the Mortgage Loans or otherwise as it and such successor shall agree;
provided, however, no such compensation shall be in excess of that permitted the
resigning or terminated party hereunder. The Depositor, the Trustee, such
successor and each other party hereto shall take such action, consistent with
this Agreement, as shall be necessary to effectuate any such succession. Any
costs and expenses associated with the transfer of the foregoing functions under
this Agreement (other than the set-up costs of the successor) shall be borne by
the predecessor Master Servicer, Special Servicer or REMIC Administrator, as
applicable, and, if not paid by such predecessor Master Servicer, Special
Servicer or REMIC Administrator within 30 days of its receipt of an invoice
therefor, shall be an expense of the Trust; provided that such predecessor
Master Servicer, Special Servicer or REMIC Administrator shall reimburse the
Trust for any such expense so incurred by the Trust; and provided, further, if
the Trustee is directed to do so by the Directing Certificateholder, the Trustee
shall pursue any remedy against any party obligated to make such reimbursement.
Section 7.03 Form 8-K Information; Notification to
Certificateholders.
(a) The predecessor and successor Master Servicer shall each provide
the Depositor and the Trustee with all information required by the Depositor to
comply with its reporting obligation under Item 6.02 of Form 8-K not later than
the effective date of such appointment.
(b) Upon any resignation of the Master Servicer, the Special
Servicer or the REMIC Administrator pursuant to Section 6.04, any termination of
the Master Servicer, the Special Servicer or the REMIC Administrator pursuant to
Section 7.01 or any appointment of a successor to the Master Servicer, the
Special Servicer or the REMIC Administrator pursuant to Section 6.04 or Section
7.02, the Trustee shall give prompt written notice thereof to Certificateholders
at their respective addresses appearing in the Certificate Register, the Class
A-2FL Swap Counterparty and the Class A-JFL Swap Counterparty.
(c) Not later than the later of (i) 60 days after the occurrence of
any event that constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) five days after the Trustee has actual
knowledge, or would be deemed in accordance with Section 8.02(g) to have notice
of the occurrence of such an event, the Trustee shall transmit by mail to the
other non-defaulting parties hereto and all Certificateholders, the Class A-2FL
Swap Counterparty and the Class A-JFL Swap Counterparty notice of such
occurrence, unless such default shall have been cured.
Section 7.04 Waiver of Events of Default.
The Holders entitled to at least 66-2/3% of the Voting Rights
allocated to each of the Classes of Certificates, or any Companion Loan Holder
(if applicable), affected by any Event of Default hereunder may waive such Event
of Default, except that prior to any waiver of an Event of Default arising from
a failure to make P&I Advances, the Trustee shall be reimbursed all amounts that
it has advanced and for any costs and expenses associated with any related
Servicing Transfer Event. Upon any such waiver of an Event of Default, such
Event of Default shall cease to exist and shall be deemed to have been remedied
for every purpose hereunder. No such waiver shall extend to any subsequent or
other Event of Default or impair any right consequent thereon except to the
extent expressly so waived. Notwithstanding any other provisions of this
Agreement, for purposes of waiving any Event of Default pursuant to this Section
7.04, Certificates registered in the name of the Depositor or any Affiliate of
the Depositor (provided that neither the Depositor nor any Affiliate thereof is
the party in respect of which such Event of Default exists) shall be entitled to
the same Voting Rights with respect to the matters described above as they would
if any other Person held such Certificates.
Section 7.05 Additional Remedies of Trustee Upon Event of Default.
During the continuance of any Event of Default, so long as such
Event of Default shall not have been remedied, the Trustee, in addition to the
rights specified in Section 7.01, shall have the right, in its own name and as
trustee of an express trust, to take all actions now or hereafter existing at
law, in equity or by statute to enforce its rights and remedies and to protect
the interests, and enforce the rights and remedies, of the Certificateholders
(including the institution and prosecution of all judicial, administrative and
other proceedings and the filings of proofs of claim and debt in connection
therewith). Except as otherwise expressly provided in this Agreement, no remedy
provided for by this Agreement shall be exclusive of any other remedy, and each
and every remedy shall be cumulative and in addition to any other remedy, and no
delay or omission to exercise any right or remedy shall impair any such right or
remedy or shall be deemed to be a waiver of any Event of Default.
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default
hereunder and after the curing or waiver of all such Events of Default and
defaults that may have occurred, undertakes to perform such duties and only such
duties as are specifically set forth in this Agreement; provided that it is
herein acknowledged and agreed that the Trustee is at all times acting in a
fiduciary capacity with respect to the Certificateholders. If an Event of
Default hereunder occurs and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by this Agreement and applicable law, and use
the same degree of care and skill in their exercise as a prudent man or the
Trustee would exercise or use under the circumstances in the conduct of his or
its own affairs (whichever standard would be higher). Any permissive right of
the Trustee contained in this Agreement shall not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee that are specifically required to be furnished pursuant to any
provision of this Agreement (other than the Mortgage Files, the review of which
is specifically governed by the terms of Article II), shall examine them to
determine whether they conform in form to the requirements of this Agreement. If
any such instrument is found not to so conform to the requirements of this
Agreement in a material manner, the Trustee shall take such action as it deems
appropriate to have the instrument corrected. The Trustee shall not be
responsible for, but may assume and rely upon, the accuracy and content of any
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by the Depositor, the Master Servicer, the Special Servicer
or the REMIC Administrator and accepted by the Trustee in good faith, pursuant
to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however:
(i) The duties and obligations of the Trustee shall be determined
solely by the express provisions of this Agreement, the Trustee shall not
be liable except for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and, in
the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Agreement;
(ii) The Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(iii) The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Holders of Certificates entitled to at
least 25% (or, as to any particular matter, any higher percentage as may
be specifically provided for hereunder) of the Voting Rights relating to
the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon
the Trustee, under this Agreement.
(d) The Trustee hereby indemnifies and holds the Trust harmless for
all losses, liabilities and damages incurred by the Trust or the
Certificateholders by virtue of the Trustee's negligence or fraud.
Section 8.02 Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
(a) The Trustee may rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate, certificate
of auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond or other paper or document
reasonably believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) The Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance therewith;
(c) The Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Agreement or to make any investigation of
matters arising hereunder or to institute, conduct or defend any litigation
hereunder or in relation hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement, unless such
Certificateholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities that may be incurred
therein or thereby; provided, further, the Trustee shall be under no obligation
to take any action to enforce the rights of the Class A-2FL Swap Trust under the
Class A-2FL Swap Contract unless it is assured, in its sole discretion, that the
costs and expenses of such action(s) will be reimbursed by the Class A-2FL Swap
Counterparty or the Holders of the Class A-2FL Certificates, as applicable, or
another party (other than the Trust); provided, further, the Trustee shall be
under no obligation to take any action to enforce the rights of the Class A-JFL
Swap Trust under the Class A-JFL Swap Contract unless it is assured, in its sole
discretion, that the costs and expenses of such action(s) will be reimbursed by
the Class A-JFL Swap Counterparty or the Holders of the Class A-JFL
Certificates, as applicable, or another party (other than the Class A-2FL Swap
Trust, the Class A-JFL Swap Trust or the Trust Fund); provided, further, the
Trustee shall not be required to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it; nothing contained herein
shall, however, relieve the Trustee of the obligation, upon the occurrence of an
Event of Default hereunder that has not been cured, to exercise such of the
rights and powers vested in it by this Agreement and to use the same degree of
care and skill in their exercise as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs;
(d) The Trustee shall not be personally liable for any action
reasonably taken, suffered or omitted by it in good faith and believed by it to
be authorized or within the discretion or rights or powers conferred upon it by
this Agreement;
(e) Prior to the occurrence of an Event of Default hereunder, and
after the curing of all such Events of Default that may have occurred, the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or document,
unless requested in writing to do so by Holders of Certificates entitled to at
least 25% of the Voting Rights; provided, however, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it by
the terms of this Agreement, the Trustee may require reasonable indemnity
against such expense or liability as a condition to taking any such action;
(f) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys-in-fact, provided that the use of any such agent or attorney-in-fact
shall not relieve the Trustee from any of its obligations hereunder, and the
Trustee shall remain responsible for all acts and omissions of any such agent or
attorney-in-fact;
(g) For all purposes under this Agreement, the Trustee shall not be
deemed to have notice of any Event of Default hereunder unless a Responsible
Officer of the Trustee has actual knowledge thereof or unless written notice of
any event that is in fact such a default is received by the Trustee at the
Corporate Trust Office, and such notice references the Certificates or this
Agreement; and
(h) The Trustee shall not be responsible for any act or omission of
the Master Servicer, the Special Servicer or the REMIC Administrator (unless the
Trustee is acting as Master Servicer, Special Servicer or REMIC Administrator,
as the case may be) or for any act or omission of the Depositor or the Mortgage
Loan Sellers.
Section 8.03 Trustee Not Liable for Validity or Sufficiency of
Certificates or Loans.
The recitals contained herein and in the Certificates (other than
the representations and warranties of, and the other statements attributed to,
the Trustee in Article II and the certificate of authentication executed by the
Trustee as Certificate Registrar set forth on each outstanding Certificate)
shall be taken as the statements of the Depositor, the Master Servicer, the
Special Servicer or the REMIC Administrator, as the case may be, and the Trustee
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Agreement (other than
as specifically set forth in Section 2.07) or of any Certificate (other than as
to the signature of the Trustee set forth thereon) or of any Loan or related
document. The Trustee shall not be accountable for the use or application by the
Depositor of any of the Certificates issued to it or of the proceeds of such
Certificates, or for the use or application of any funds paid to the Depositor
in respect of the assignment of the Mortgage Loans to the Trust, or any funds
deposited into or withdrawn from the Certificate Account or any other account by
or on behalf of the Depositor, the Master Servicer, the Special Servicer or the
REMIC Administrator. The Trustee shall not be responsible for the accuracy or
content of any resolution, certificate, statement, opinion, report, document,
order or other instrument furnished by the Depositor, the Master Servicer, the
Special Servicer or the REMIC Administrator and accepted by the Trustee, in good
faith, pursuant to this Agreement.
Section 8.04 Trustee May Own Certificates.
The Trustee, in its individual or any other capacity, and any agent
of the Trustee may become the owner or pledgee of Certificates with, except as
otherwise provided in the definition of Certificateholder, the same rights it
would have if it were not the Trustee or such agent, as the case may be.
Section 8.05 Fees of Trustee; Indemnification of Trustee.
(a) The Trustee shall pay to itself on each Distribution Date,
pursuant to Section 3.05(b)(ii), from amounts on deposit in the Distribution
Account, an amount equal to the Trustee Fee for such Distribution Date and, to
the extent not previously received, for each prior Distribution Date.
(b) The Trustee and any director, officer, employee or agent of the
Trustee (whether in their Trustee capacity or individually), or Person, if any,
who controls the Trustee within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, shall be entitled to be
indemnified and held harmless by the Trust (to the extent of amounts on deposit
in the Certificate Account and the Distribution Account from time to time)
against any loss, liability or expense (including, without limitation, costs and
expenses of litigation, and of investigation, counsel fees, damages, judgments
and amounts paid in settlement) arising out of, or incurred in connection with,
any legal actions relating to the exercise and performance of any of the powers
and duties of the Trustee hereunder and any other "unanticipated expenses"
(similar to those defined in Treasury Regulations Section 1.860G-1(b)(3)(ii)) of
the Trustee; provided that the Trustee shall not be entitled to indemnification
pursuant to this Section 8.05(b) for (i) allocable overhead, (ii) expenses or
disbursements incurred or made by or on behalf of the Trustee in the normal
course of the Trustee's performing its routine duties in accordance with any of
the provisions hereof, (iii) any expense or liability specifically required to
be borne thereby pursuant to the terms hereof, or (iv) any loss, liability or
expense incurred by reason of willful misfeasance, bad faith or negligence in
the performance of the Trustee's obligations and duties hereunder, or by reason
of negligent disregard of such obligations or duties, or as may arise from a
breach of any representation, warranty or covenant of the Trustee made herein.
The provisions of this Section 8.05(b) shall (i) survive any resignation or
removal of the Trustee and appointment of a successor trustee and (ii) extend to
any other role that the Trustee may assume hereunder, including without
limitation REMIC Administrator, Custodian and/or Certificate Registrar.
Section 8.06 Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation, a trust
company, a bank or a banking association: (i) organized and doing business under
the laws of the United States of America or any State thereof or the District of
Columbia; (ii) authorized under such laws to exercise trust powers; (iii) having
a combined capital and surplus of at least $50,000,000; (iv) subject to
supervision or examination by federal or state authority; and (v) whose
long-term senior unsecured debt is rated not less than "AA-" by S&P (or "A+" by
S&P, if the Trustee's unsecured short-term debt is rated at least "A-1" by S&P)
and whose short-term unsecured debt obligations are rated not less than "F-1" by
Fitch (or, in the case of either Rating Agency, such other rating as each such
Rating Agency shall permit so long as it is accompanied by a statement in
writing that any of the then-current ratings assigned by such Rating Agency to
the respective Classes of the Certificates or Companion Loan Securities would
not be downgraded, qualified (if applicable) or withdrawn as a result of such
rating). If such corporation, trust company, bank or banking association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then, for the
purposes of this Section 8.06, the combined capital and surplus of such
corporation, trust company, bank or banking association shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. No Person shall become a successor trustee hereunder if
the succession of such Person would result in a downgrade, qualification (if
applicable) or withdrawal of any of the ratings then assigned by the Rating
Agencies to the Certificates or Companion Loan Securities. In case at any time
the Trustee shall cease to be eligible in accordance with the provisions of this
Section 8.06, the Trustee shall resign immediately in the manner and with the
effect specified in Section 8.07. Notwithstanding the foregoing, if the Trustee
meets the requirements of clauses (i) through (iv) above, but does not meet the
requirements of clause (v) above, the Trustee shall be deemed to meet the
requirements of such clause (v) if (a) it appoints a fiscal agent as a back-up
advancer that satisfies the requirements of such clause (v) and (b) such fiscal
agent shall have assumed in writing all obligations of the Trustee to make
Advances under this Agreement as and when required of the Trustee. The
corporation, trust company, bank or banking association serving as Trustee may
have normal banking and trust relationships with the Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator and their respective
Affiliates.
Section 8.07 Resignation and Removal of the Trustee.
(a) The Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Depositor, the
Master Servicer, the Special Servicer, the REMIC Administrator, the Class A-2FL
Swap Counterparty, the Class A-JFL Swap Counterparty and all Certificateholders
and all Companion Loan Holders. In addition if the Trustee resigns or is
discharged, then any fiscal agent appointed by the Trustee shall also be deemed
to have resigned or have been discharged. Upon receiving such notice of
resignation, the Depositor shall promptly appoint a successor trustee acceptable
to the Master Servicer by written instrument, in duplicate, which instrument
shall be delivered to the resigning Trustee and to the successor trustee. A copy
of such instrument shall be delivered to the Master Servicer, the Special
Servicer, the Class A-2FL Swap Counterparty, the Class A-JFL Swap Counterparty,
the REMIC Administrator and the Certificateholders by the Depositor. If no
successor trustee shall have been so appointed and have accepted appointment
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
written request therefor by the Depositor or the Master Servicer, or if at any
time the Trustee shall become incapable of acting, or shall be adjudged bankrupt
or insolvent, or a receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Depositor may remove the Trustee and appoint a successor
trustee acceptable to the Master Servicer by written instrument, in duplicate,
which instrument shall be delivered to the Trustee so removed and to the
successor trustee. A copy of such instrument shall be delivered to the Master
Servicer, the Special Servicer, the Directing Certificateholder, all Companion
Loan Holders, the REMIC Administrator and the Certificateholders by the
Depositor.
(c) The Holders of Certificates entitled to at least 33 1/3% of the
Voting Rights may at any time remove the Trustee and appoint a successor trustee
by written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which instruments
shall be delivered to the Master Servicer, one complete set to the Trustee so
removed and one complete set to the successor so appointed; provided that the
Master Servicer, all Companion Loan Holders, the Depositor and the remaining
Certificateholders shall have been notified; and provided, further, other
Holders of the Certificates entitled to a greater percentage of the Voting
Rights shall not have objected to such removal in writing to the Master Servicer
and the Depositor within 30 days of their receipt of notice thereof. A copy of
such instrument shall be delivered to the Depositor, the Special Servicer, the
REMIC Administrator and the remaining Certificateholders by the Master Servicer.
If the Trustee is removed under this Agreement without cause, all reasonable
costs and expenses incurred by the Trustee (to the extent not duplicative of any
reimbursement provided for under Section 8.08(a)) shall be at the expense of the
party causing such removal.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until acceptance of appointment by the successor trustee as
provided in Section 8.08; and no such resignation or removal of the Trustee
and/or appointment of a successor trustee shall be permitted, unless, as
confirmed in writing by each Rating Agency, such resignation or removal and
appointment would not result in the downgrade, qualification (if applicable) or
withdrawal of the rating assigned by any Rating Agency to any Class of
Certificates or Companion Loan Securities. The Master Servicer shall give notice
to all Companion Loan Holders of any resignation or removal of the Trustee and
appointment of a successor trustee.
Section 8.08 Successor Trustee.
(a) Any successor trustee appointed as provided in Section 8.07
shall execute, acknowledge and deliver to the Depositor, the Master Servicer,
the Special Servicer, the REMIC Administrator and to its predecessor trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor trustee shall become effective and such successor
trustee without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor
hereunder, with the like effect as if originally named as trustee herein. The
predecessor trustee shall deliver to the successor trustee all Mortgage Files
and related documents and statements held by it hereunder, and the Depositor,
the Master Servicer, the Special Servicer, the REMIC Administrator and the
predecessor trustee shall execute and deliver such instruments and do such other
things as may reasonably be required to more fully and certainly vest and
confirm in the successor trustee all such rights, powers, duties and
obligations, and to enable the successor trustee to perform its obligations
hereunder. If such predecessor trustee was removed as Trustee under this
Agreement without cause, the cost of any such execution, delivery or action
shall be at the expense of the Trust.
(b) No successor trustee shall accept appointment as provided in
this Section 8.08 unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 8.08, the successor trustee shall mail notice of the
succession of such trustee to the Depositor and the Certificateholders.
(d) The predecessor Trustee and successor Trustee shall notify the
Depositor of any such appointment at least two Business Days prior to the
effective date thereof and shall provide the Depositor with all information
required by the Depositor to comply with its reporting obligation under Item
6.02 of Form 8-K not later than the effective date of such appointment.
Section 8.09 Merger or Consolidation of Trustee.
Any entity into which the Trustee may be merged or converted or with
which it may be consolidated or any entity resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any entity succeeding
to the corporate trust business of the Trustee, shall be the successor of the
Trustee, hereunder, without the execution or filing of any paper or any further
act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided that the Trustee shall continue to be eligible under
the provisions of Section 8.06 and, as confirmed in writing by each Rating
Agency, such merger, conversion or consolidation would not result in the
downgrade, qualification (if applicable) or withdrawal of the rating assigned by
any Rating Agency to any Class of Certificates. The successor to the Trustee
shall promptly notify in writing each of the other parties hereto, the
Certificateholders and the Rating Agencies of any such merger, conversion,
consolidation or succession to business. The Trustee and such surviving Person
shall notify the Depositor of any such merger, conversion or consolidation at
least two Business Days prior to the effective date thereof and shall provide
the Depositor will all information required by the Depositor to comply with its
reporting obligation under Item 6.02 of Form 8-K not later than the effective
date of such merger, conversion or consolidation.
Section 8.10 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing the same may at the time be located,
the Master Servicer and the Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity, such title
to the Trust Fund, or any part thereof, and, subject to the other provisions of
this Section 8.10, such powers, duties, obligations, rights and trusts as the
Master Servicer and the Trustee may consider necessary or desirable. If the
Master Servicer shall not have joined in such appointment within 15 days after
the receipt by it of a request to do so, or in case an Event of Default in
respect of the Master Servicer shall have occurred and be continuing, the
Trustee alone shall have the power to make such appointment. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility as
a successor trustee under Section 8.06 hereunder and no notice to Holders of
Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be
required under Section 8.08 .
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10 all rights, powers, duties and obligations
conferred or imposed upon the Trustee, to the extent necessary for such
co-trustee to perform its duties and obligations for which it has been appointed
and specifically including the provisions of Section 8.05(b), shall be conferred
or imposed upon and exercised or performed by the Trustee and such separate
trustee or co-trustee jointly, except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed (whether as
Trustee hereunder or as successor to the Master Servicer, the Special Servicer
or the REMIC Administrator hereunder), the Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Trust Fund or any
portion thereof in any such jurisdiction) shall be exercised and performed by
such separate trustee or co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties, responsibilities or
liabilities hereunder; provided that the Trustee shall have no liability for the
actions or inaction of a separate trustee or co-trustee that do not comply with
the provisions of Section 8.10(b).
Section 8.11 Appointment of Custodians.
The Trustee may, with the consent of the Master Servicer, appoint
one or more Custodians to hold all or a portion of the Mortgage Files as agent
for the Trustee; provided that if the Custodian is an Affiliate of the Trustee
such consent of the Master Servicer need not be obtained and the Trustee shall
instead notify the Master Servicer of such appointment. Each Custodian shall be
a depository institution subject to supervision by federal or state authority,
shall have combined capital and surplus (or shall have its performance
guaranteed by an Affiliate with a combined capital and surplus) of at least
$10,000,000, shall be qualified to do business in the jurisdiction in which it
holds any Mortgage File and shall not be the Depositor, any Mortgage Loan Seller
or any Affiliate of any of them. Each Custodian shall be subject to the same
obligations and standard of care as would be imposed on the Trustee hereunder in
connection with the retention of Mortgage Files directly by the Trustee. The
appointment of one or more Custodians shall not relieve the Trustee from any of
its duties, liabilities or obligations hereunder, and the Trustee shall remain
responsible for all acts and omissions of any Custodian. Any such Custodian
(other than the Trustee or an Affiliate of the Trustee) shall maintain the same
errors and omissions insurance as required of the Master Servicer pursuant to
Section 3.07(c).
Section 8.12 Access to Certain Information.
(a) The Trustee shall provide or cause to be provided to the
Depositor, the Master Servicer, the Special Servicer and the Rating Agencies,
and to the OTS, the FDIC, and any other federal or state banking or insurance
regulatory authority that may exercise authority over any Certificateholder,
access to the Mortgage Files and any other documentation regarding the Loans and
the Trust Fund, that is within its control that may be required by this
Agreement or by applicable law. Such access shall be afforded without charge but
only upon reasonable prior written request and during normal business hours at
the offices of the Trustee designated by it.
(b) Promptly following the first sale of any Non-Registered
Certificate to an Independent third party, the Depositor shall provide to the
Trustee ten copies of any private placement memorandum or other disclosure
document used by the Depositor or its Affiliate in connection with the offer and
sale of the Class of Certificates to which such Non-Registered Certificate
belongs. In addition, if any such private placement memorandum or disclosure
document is revised, amended or supplemented at any time following the delivery
thereof to the Trustee, the Depositor promptly shall inform the Trustee of such
event and shall deliver to the Trustee ten copies of the private placement
memorandum or disclosure document, as revised, amended or supplemented. The
Trustee shall maintain at its Corporate Trust Office and shall on behalf of the
Depositor, upon reasonable advance written notice, make available during normal
business hours for review by each Rating Agency and by any Certificateholder or
any Certificate Owner or any Person identified to the Trustee by a
Certificateholder or a Certificate Owner as a prospective transferee of a
Certificate or interest therein, originals or copies of the following items: (i)
in the case of a Holder or prospective transferee of a Non-Registered
Certificate, any private placement memorandum or other disclosure document
relating to the Class of Certificates to which such Non-Registered Certificate
belongs, in the form most recently provided to the Trustee; and (ii) in all
cases, (A) all Officer's Certificates delivered to the Trustee since the Closing
Date pursuant to Section 11.09, (B) all accountants' reports delivered to the
Trustee since the Closing Date pursuant to Section 11.11, (C) the most recent
inspection report, together with any related additional written or electronic
information, prepared or obtained by, or on behalf of, the Master Servicer or
Special Servicer, as the case may be, and delivered to the Trustee in respect of
each Mortgaged Property pursuant to Section 3.12(a), (D) all Mortgagor financial
statements and Mortgaged Property operating statements and rent rolls, together
with any related additional written or electronic information, delivered to the
Trustee by the Master Servicer or the Special Servicer pursuant to Section
3.12(b), (E) any and all notices and reports delivered to the Trustee with
respect to any Mortgaged Property securing a Defaulted Serviced Loan as to which
the environmental testing contemplated by Section 3.09(c) revealed that either
of the conditions set forth in clauses (i) and (ii) of the first sentence
thereof was not satisfied or that any remedial, corrective or other further
action contemplated in such clauses is required (but only for so long as such
Mortgaged Property or the related Mortgage Loan is part of the Trust Fund), (F)
all documents constituting the Mortgage Files, including, without limitation,
any and all modifications, waivers and amendments of the terms of a Loan entered
into by the Master Servicer or the Special Servicer and delivered to the Trustee
pursuant to Section 3.20 (but, in each case, only for so long as the related
Mortgage Loan is part of the Trust Fund) and, (G) any Asset Status Report.
Copies of any and all of the foregoing items are to be available from the
Trustee upon request; however, the Trustee shall be permitted to require payment
of a sum sufficient to cover the reasonable costs and expenses of providing such
service.
In connection with providing access to or copies of the items
described in the immediately preceding paragraph of this Section 8.12(b), the
Trustee may require, unless the Depositor directs otherwise, (i) in the case of
Certificate Owners, a written confirmation executed by the requesting Person, in
form reasonably satisfactory to the Trustee, generally to the effect that such
Person is a beneficial holder of Certificates and will keep such information
confidential and (ii) in the case of any prospective purchaser of a Certificate
or, in the case of a Book-Entry Certificate, of a beneficial ownership interest
therein, a written confirmation executed by the requesting Person, in form
reasonably satisfactory to the Trustee, generally to the effect that such Person
is a prospective purchaser of a Certificate or a beneficial ownership interest
therein, is requesting the information for use in evaluating a possible
investment in Certificates and will otherwise keep such information
confidential. All Certificateholders, by acceptance of their Certificates, shall
be deemed to have agreed to keep such information confidential, except to the
extent that the Depositor grants written permission to the contrary.
Notwithstanding the preceding sentences of this paragraph, the Trustee shall
have no responsibility for the accuracy, completeness or sufficiency of any
information so made available or furnished by it in the manner described in the
immediately preceding paragraph.
Section 8.13 Maintenance of Mortgage File.
Except for the release of items in the Mortgage File contemplated by
this Agreement, including, without limitation, as necessary for the enforcement
of the holder's rights and remedies under the related Mortgage Loan, the Trustee
covenants and agrees that it shall maintain each Mortgage File in the State of
Minnesota, and that it shall not move any Mortgage File outside the State of
Minnesota, other than as specifically provided for in this Agreement, unless it
shall first obtain and provide, at the expense of the Trustee, an Opinion of
Counsel addressed to the Depositor and the Rating Agencies to the effect that
the Trustee's first priority interest in the Mortgage Notes has been duly and
fully perfected under the applicable laws and regulations of such other
jurisdiction.
ARTICLE IX
TERMINATION
Section 9.01 Termination Upon Repurchase or Liquidation of All
Mortgage Loans.
Subject to Section 9.02, the Trust and the respective obligations
and responsibilities under this Agreement of the Depositor, the Master Servicer,
the Special Servicer, the Trustee and the REMIC Administrator (other than the
obligations of the Trustee to provide for and make payments to
Certificateholders as hereafter set forth and the obligations of the REMIC
Administrator to file the final Tax Returns for each of REMIC I and REMIC II and
to maintain the books and records thereof for a commercially reasonable period)
shall terminate upon payment (or provision for payment) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required hereunder to be so paid, any unpaid Class A-2FL Net Swap Payment owed
to the Class A-2FL Swap Counterparty and any unpaid Class A-JFL Net Swap Payment
owed to the Class A-JFL Swap Counterparty (which shall be payable outside the
Trust REMICs to the respective Swap Trust) on the Distribution Date following
the earlier to occur of (i) the purchase by the Majority Certificateholder of
the Controlling Class (other than the Depositor or any Mortgage Loan Seller) the
Master Servicer, or the Special Servicer (in that order of priority) of all
Mortgage Loans and each REO Property remaining in REMIC I at a price (to be
calculated by the Master Servicer and the Trustee as of the close of business on
the third Business Day preceding the date upon which notice of any such purchase
is furnished to Certificateholders pursuant to the third paragraph of this
Section 9.01 and as if the purchase was to occur on such Business Day) equal to
(A) the aggregate Purchase Price of all the Mortgage Loans included in REMIC I,
plus (B) the appraised value of each REO Property, if any, included in REMIC I
(such appraisal to be conducted by a Qualified Appraiser selected by the Master
Servicer or the Special Servicer and approved by the Trustee), minus (C) if such
purchase is being made by the Master Servicer or the Special Servicer, the
aggregate amount of unreimbursed Advances made by the related person, together
with any Advance Interest payable to the related person in respect of such
Advances and any unpaid servicing compensation remaining outstanding (which
items shall be deemed to have been paid or reimbursed to the related person in
connection with such purchase), and (ii) the final payment or other liquidation
(or any Advance with respect thereto) of the last Mortgage Loan or REO Property
remaining in REMIC I; provided, however, in no event shall the trust created
hereby continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the
United States to the Court of St. Xxxxx, living on the date hereof.
The Majority Certificateholder of the Controlling Class (other than
the Depositor or any Mortgage Loan Seller) has the right, and if the Majority
Certificateholder of the Controlling Class fails to exercise such right, the
Master Servicer and the Special Servicer, in that order of priority, has the
right to purchase all of the Mortgage Loans and each REO Property remaining in
REMIC I as contemplated by clause (i) of the preceding paragraph by giving
written notice to the other parties hereto no later than 60 days prior to the
anticipated date of purchase; provided, however, the Master Servicer, the
Special Servicer and any Majority Certificateholder of the Controlling Class
(other than the Depositor or any Mortgage Loan Seller) each may so elect to
purchase all of the Mortgage Loans and each REO Property remaining in REMIC I
only if the aggregate Stated Principal Balance of the Mortgage Pool at the time
of such election is less than 1.0% of the aggregate Cut-off Date Balance of all
the Mortgage Loans included in the Trust Fund as of the Closing Date. In the
event that the Master Servicer, the Special Servicer or any Majority
Certificateholder of the Controlling Class (other than the Depositor or any
Mortgage Loan Seller) elects to purchase all of the Mortgage Loans and each REO
Property remaining in REMIC I in accordance with the preceding sentence, the
Master Servicer, the Special Servicer or such Majority Certificateholder, as
applicable, shall deposit into the Distribution Account not later than the
Master Servicer Remittance Date relating to the Distribution Date on which the
final distribution on the Certificates is to occur, an amount in immediately
available funds equal to the above-described purchase price (exclusive of any
portion thereof payable to any Person other than the Certificateholders pursuant
to Section 3.05(a), which portion shall be deposited into the Certificate
Account) or, if a Whole Loan is involved, in the related Whole Loan Custodial
Account. In addition, the Master Servicer shall transfer all amounts required to
be transferred to the Distribution Account on such Master Servicer Remittance
Date from the Certificate Account or, if a Whole Loan is involved, the related
Whole Loan Custodial Account pursuant to the first paragraph of Section 3.04(e).
Upon confirmation that such final deposits have been made, the Trustee shall
release or cause to be released to the purchaser or its designee, the Mortgage
Files for the remaining Mortgage Loans and shall execute all assignments,
endorsements and other instruments furnished to it by the purchaser, as shall be
necessary to effectuate transfer of the Mortgage Loans and REO Properties
remaining in REMIC I.
Following the date on which the Class Principal Balances of the
Investment Grade Sequential Pay Certificates and the Class A-2FL and Class A-JFL
Certificates are reduced to zero, the Sole Pooled Certificateholder shall have
the right to exchange all of such Certificates for all of the Mortgage Loans and
each REO Property remaining in the Trust Fund by giving written notice to all
the parties hereto and, Companion Loan Holders and each Controlling Holder no
later than 60 days prior to the anticipated date of exchange. In the event that
the Holders voluntarily participate in the exchange described above, such
exchange shall occur by means of an arms length transaction for which such
Holder shall have received, immediately upon the consummation of the exchange
described in the next sentence, consideration (which consideration may include
(among other things): cash (or its equivalent), a beneficial ownership interest
in the related Mortgage Loan in the form of a participation or any combination
thereof) for its beneficial ownership interest in the Trust Fund and its related
interest in any REMIC created hereunder equal to the value of the Certificates
held by such Holder. Further, in the event that the Sole Pooled
Certificateholder elects to exchange all of its Certificates for all of the
Mortgage Loans and each REO Property (or the pro rata portion thereof allocable
to such Holders) remaining in the Trust in accordance with the second preceding
sentence, the Sole Pooled Certificateholder, not later than the Distribution
Date on which the final distribution on the Certificates is to occur, shall
deposit in the Certificate Account an amount in immediately available funds
equal to all amounts due and owing to the Depositor, the Master Servicer, the
Special Servicer and the Trustee hereunder through the date of the liquidation
of the Trust Fund that may be withdrawn from the Certificate Account, or an
escrow account acceptable to the respective parties hereto, pursuant to Section
3.05(a) or that may be withdrawn from the Distribution Account pursuant to
Section 3.05(b), but only to the extent that such amounts are not already on
deposit in the Certificate Account. In addition, the Master Servicer shall
transfer all amounts required to be transferred to the REMIC I Distribution
Account on such Distribution Date from the Certificate Account pursuant to
Section 3.04(c)(i). Upon confirmation that such final deposits have been made
and following the surrender of all the Certificates beneficially owned by the
Sole Pooled Certificateholder, the Trustee shall, upon receipt of a Request for
Release from the Master Servicer, release or cause to be released to the Sole
Pooled Certificateholder or any designee thereof, the Mortgage Files for the
remaining Mortgage Loans and shall execute all assignments, endorsements and
other instruments furnished to it by the Sole Pooled Certificateholder as shall
be necessary to effectuate transfer of the Mortgage Loans and REO Properties
remaining in the Trust Fund, and the Trust Fund shall be liquidated in
accordance with Section 9.02. The remaining Mortgage Loans and REO Properties
shall thereupon be deemed distributed to the Sole Pooled Certificateholder in
liquidation of the Trust Fund pursuant to Section 9.02. Solely for federal
income tax purposes, the Sole Pooled Certificateholder shall be deemed to have
purchased the assets of REMIC I for an amount equal to the remaining Class
Principal Balance of their respective Certificates, plus accrued, unpaid
interest with respect thereto, and the Trustee shall credit such amounts against
amounts distributable in respect of such Certificates and the Corresponding
REMIC I Regular Interests.
Notice of any termination shall be given promptly by the Trustee by
letter to the Class A-2FL Swap Counterparty, the Class A-JFL Swap Counterparty
and the Certificateholders and, if not previously notified pursuant to the
preceding paragraph, to the other parties hereto mailed (a) in the event such
notice is given in connection with a purchase by the Master Servicer or any
Majority Certificateholder of the Controlling Class (other than the Depositor or
any Mortgage Loan Seller) of all of the Mortgage Loans and each REO Property
remaining in REMIC I, not earlier than the fifteenth day and not later than the
twenty-fifth day of the month next preceding the month of the final distribution
on the Certificates or (b) otherwise during the month of such final distribution
on or before the fifth day of such month, in each case specifying (i) the
Distribution Date upon which the Trust will terminate and final payment on the
Certificates will be made, (ii) the amount of any such final payment and (iii)
that the Record Date otherwise applicable to such Distribution Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the offices of the Certificate Registrar or such other location
therein designated.
Upon presentation and surrender of the Certificates by the
Certificateholders on the Final Distribution Date, the Trustee shall distribute
to each Certificateholder so presenting and surrendering its Certificates such
Certificateholder's Percentage Interest of that portion of the Available
Distribution Amount and Prepayment Premiums for such date that is allocable to
payments on the relevant Class in accordance with Section 4.01(b) and Section
4.01(c)(i). Final distributions on the REMIC I Regular Interests shall be deemed
to be made on such date as provided in Section 4.01(a)(i), Section 4.01(a)(ii),
Section 4.01(b) and Section 4.01(c)(iv).
Any funds not distributed to any Holder or Holders of Certificates
of any Class on the Final Distribution Date because of the failure of such
Holder or Holders to tender their Certificates shall, on such date, be set aside
and held uninvested in trust and credited to the account or accounts of the
appropriate non-tendering Holder or Holders. If any Certificates as to which
notice has been given pursuant to this Section 9.01 shall not have been
surrendered for cancellation within six months after the time specified in such
notice, the Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice all such Certificates shall not have been surrendered for cancellation,
the Trustee, directly or through an agent, shall take such reasonable steps to
contact the remaining non-tendering Certificateholders concerning the surrender
of their Certificates as it shall deem appropriate. The costs and expenses of
holding such funds in trust and of contacting such Certificateholders following
the first anniversary of the delivery of such second notice to the non-tendering
Certificateholders shall be paid out of such funds. No interest shall accrue or
be payable to any former Holder on any amount held in trust hereunder. If by the
second anniversary of the delivery of such second notice, all of the
Certificates shall not have been surrendered for cancellation, the Class R-II
Certificateholders shall be entitled to all unclaimed funds and other assets
that remain subject thereto.
Section 9.02 Additional Termination Requirements.
In the event the Master Servicer, the Special Servicer or a Majority
Certificateholder of the Controlling Class (other than the Depositor or any
Mortgage Loan Seller) purchases all of the Mortgage Loans and each REO Property
remaining in REMIC I as provided in Section 9.01, the Trust (and, accordingly,
REMIC I and REMIC II) shall be terminated in accordance with the following
additional requirements, unless the Master Servicer or such Majority
Certificateholder, as applicable, obtains at its own expense and delivers to the
Trustee and the REMIC Administrator an Opinion of Counsel, addressed to the
Trustee and the REMIC Administrator, to the effect that the failure of the Trust
to comply with the requirements of this Section 9.02 will not result in the
imposition of taxes on "prohibited transactions" of REMIC I or REMIC II as
defined in Section 860F of the Code or cause REMIC I or REMIC II to fail to
qualify as a REMIC at any time that any Certificates are outstanding:
(i) the REMIC Administrator shall specify the first day in the
90-day liquidation period in a statement attached to the final Tax Return
for each of REMIC I and REMIC II pursuant to Treasury Regulations Section
1.860F-1;
(ii) during such 90-day liquidation period and at or prior to the
time of making of the final payment on the Certificates, the Trustee shall
sell all of the assets of REMIC I to the Master Servicer or the Majority
Certificateholder of the Controlling Class, as applicable, for cash; and
(iii) prior to the end of such 90-day period and at the time of the
making of the final payment on the Certificates, the Trustee shall
distribute or credit, or cause to be distributed or credited, to the
Holders of the Class R-I Certificates (in the case of REMIC I) and the
Class R-II Certificates (in the case of REMIC II) all cash on hand (other
than cash retained to meet claims), and each of REMIC I and REMIC II shall
terminate at that time.
In the event the Class A-2FL Swap Trust is to be terminated while
the Class A-2FL Swap Contract is still in effect, the Trustee shall promptly
notify the Class A-2FL Swap Counterparty in writing of the date on which the
Class A-2FL Swap Trust is to be terminated and the notional amount of the Class
A-2FL Swap Contract will be reduced to zero on such date. Based on the date of
termination, the Trustee shall calculate the Class A-2FL Net Swap Payment, if
any, as specified in Section 3.33, and prior to any final distribution to the
Holders of the Class A-2FL Certificates pursuant to Section 9.01, shall pay such
Class A-2FL Net Swap Payment if any, to the Class A-2FL Swap Counterparty. In
the event that any fees (including termination fees) will be payable to the
Class A-2FL Swap Counterparty in connection with such termination, such fees
will be payable to the Class A-2FL Swap Counterparty solely from amounts
remaining in the applicable Class A-2FL Floating Rate Account after all
distributions, to the Class A-2FL Certificates are made pursuant to Section
9.01.
Similarly, in the event the Class A-JFL Swap Trust is to be
terminated while the Class A-JFL Swap Contract is still in effect, the Trustee
shall promptly notify the Class A-JFL Swap Counterparty in writing of the date
on which the Class A-JFL Swap Trust is to be terminated and the notional amount
of the Class A-JFL Swap Contract will be reduced to zero on such date. Based on
the date of termination, the Trustee shall calculate the Class A-JFL Net Swap
Payment, if any, as specified in Section 3.34, and prior to any final
distribution to the Holders of the Class A-JFL Certificates pursuant to Section
9.01, shall pay such Class A-JFL Net Swap Payment if any, to the Class A-JFL
Swap Counterparty. In the event that any fees (including termination fees) will
be payable to the Class A-JFL Swap Counterparty in connection with such
termination, such fees will be payable to the Class A-JFL Swap Counterparty
solely from amounts remaining in the applicable Class A-JFL Floating Rate
Account after all distributions, to the Class A-JFL Certificates are made
pursuant to Section 9.01.
ARTICLE X
ADDITIONAL REMIC AND GRANTOR TRUST PROVISIONS
Section 10.01 REMIC Administration.
(a) The REMIC Administrator shall elect to treat each of REMIC I and
REMIC II as a REMIC under the Code and, if necessary, under Applicable State
Law. Each such election will be made on Form 1066 or other appropriate federal
or state Tax Returns for the taxable year ending on the last day of the calendar
year in which the Certificates are issued.
(b) The REMIC I Regular Interests are hereby designated as "regular
interests" (within the meaning of Section 860G(a)(1) of the Code), and the
residual interest in REMIC I, represented by the Class R-I Certificates, is
hereby designated as the sole Class of "residual interests" (within the meaning
of Section 860G(a)(2) of the Code), in REMIC I. The Class XW, Class A-1, Class
A-2, Class A-3, Class A-AB, Class A-4, Class A-1A, Class A-M, Class A-J, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class
L, Class M, Class N, Class O, Class P, Class Q and Class S Certificates and the
Class A-2FL and Class A-JFL Regular Interests are hereby designated as the
"regular interests" (within the meaning of Section 860G(a)(1) of the Code), and
the Class R-II Certificates are hereby designated as the sole Class of "residual
interests" (within the meaning of Section 860G(a)(2) of the Code), in REMIC II.
For the avoidance of doubt, the Class XW Certificates represent "specified
portions," within the meaning of Treasury Regulations Section 1.860G-1(a)(2), of
the interest payments on the REMIC I Regular Interests corresponding to their
respective Corresponding Components. None of the REMIC Administrator, the Master
Servicer, the Special Servicer or the Trustee shall, to the extent it is within
the control of such Person, create or permit the creation of any other
"interests" in REMIC I or REMIC II.
(c) The Closing Date is hereby designated as the "startup day" of
each of REMIC I and REMIC II within the meaning of Section 860G(a)(9) of the
Code. The "latest possible maturity date", within the meaning of Treasury
Regulations Section 1.860G-1(a)(4)(iii) of the REMIC I Regular Interests, the
REMIC II Regular Certificates and the Class A-2FL and Class A-JFL Regular
Interests is the Rated Final Distribution Date.
(d) The REMIC Administrator is hereby designated as agent for the
Tax Matters Person of each of REMIC I and REMIC II and shall: act on behalf of
the Trust in relation to any tax matter or controversy, represent the Trust in
any administrative or judicial proceeding relating to an examination or audit by
any governmental taxing authority, request an administrative adjustment as to
any taxable year of REMIC I or REMIC II, enter into settlement agreements with
any governmental taxing agency, extend any statute of limitations relating to
any tax item of REMIC I or REMIC II, and otherwise act on behalf of each of
REMIC I and REMIC II in relation to any tax matter or controversy involving such
REMIC. By their acceptance thereof, the Holders of the REMIC Residual
Certificates hereby agree to irrevocably appoint the REMIC Administrator as
their agent to perform all of the duties of the Tax Matters Person for REMIC I
and REMIC II. Subject to Section 10.01(g), the legal expenses and costs of any
action described in this subsection (e) and any liability resulting therefrom
shall be expenses, costs and liabilities of the Trust, and the REMIC
Administrator shall be entitled to be reimbursed therefor out of any amounts on
deposit in the Distribution Account as provided by Section 3.05(b).
(e) The REMIC Administrator shall prepare and file or cause to be
prepared and filed, and the Trustee shall sign, all of the Tax Returns in
respect of each of REMIC I and REMIC II. The expenses of preparing and filing
such returns shall be borne by the REMIC Administrator without any right of
reimbursement therefor.
(f) The REMIC Administrator shall perform or cause to be performed
on behalf of each of REMIC I and REMIC II all reporting and other tax compliance
duties that are the responsibility of each such REMIC under the Code, the REMIC
Provisions or other compliance guidance issued by the IRS or any other taxing
authority under Applicable State Law. Included among such duties, the REMIC
Administrator shall provide, or cause to be provided: (i) to any Transferor of a
REMIC Residual Certificate and the IRS, such information as is necessary for the
application of any tax relating to the transfer of a REMIC Residual Certificate
to any Person who is a Disqualified Organization; (ii) to the
Certificateholders, such information or reports as are required by the Code or
the REMIC Provisions, including, without limitation, reports relating to
interest, original issue discount and market discount or premium (using the
Prepayment Assumption as required); and (iii) with respect to REMIC II, Form
8811, or other applicable form, to the IRS, and the name, title, address and
telephone number of the Person who will serve as the representative of REMIC II.
(g) The REMIC Administrator shall perform its duties more
specifically set forth hereunder in a manner consistent with maintaining the
status of each of REMIC I and REMIC II as a REMIC under the REMIC Provisions
(and each of the other parties hereto shall assist it, to the extent reasonably
requested by it). The REMIC Administrator shall not knowingly take (or cause
either of REMIC I or REMIC II to take) any action or fail to take (or fail to
cause to be taken) any action within the scope of its duties more specifically
set forth hereunder that, under the REMIC Provisions, if taken or not taken, as
the case may be, could result in an Adverse REMIC Event with respect to REMIC I
or REMIC II, unless the REMIC Administrator has received an Opinion of Counsel
to the effect that the contemplated action will not result in an Adverse REMIC
Event. None of the other parties hereto shall take any action (whether or not
authorized hereunder) as to which the REMIC Administrator has advised it in
writing that it has received an Opinion of Counsel to the effect that an Adverse
REMIC Event could occur with respect to such action. In addition, prior to
taking any action with respect to REMIC I or REMIC II, or causing REMIC I or
REMIC II to take any action, that is not expressly permitted under the terms of
this Agreement, each of the other parties hereto will consult with the REMIC
Administrator, in writing, with respect to whether such action could cause an
Adverse REMIC Event to occur. None of the parties hereto shall take any such
action or cause REMIC I or REMIC II to take any such action as to which the
REMIC Administrator has advised it in writing that an Adverse REMIC Event could
occur. The REMIC Administrator may consult with counsel to make such written
advice, and the cost of same shall be borne: (i) if such action that is not
expressly permitted by this Agreement would be of a material benefit to or
otherwise in the best interests of the Certificateholders as a whole, by the
Trust and shall be paid by the Trustee at the direction of the REMIC
Administrator out of amounts on deposit in the Distribution Account; and (ii)
otherwise by the party seeking to take the action not permitted by this
Agreement.
In the event that any tax is imposed on REMIC I or REMIC II,
including, without limitation, "prohibited transactions" taxes as defined in
Section 860F(a)(2) of the Code, any taxes on contributions to REMIC I or REMIC
II after the Startup Day pursuant to Section 860G(d) of the Code, and any other
tax imposed by the Code or any applicable provisions of state or local tax laws
(other than any tax permitted to be incurred by the Special Servicer pursuant to
Section 3.17(a)), such tax, together with all incidental costs and expenses
(including, without limitation, penalties and reasonable attorneys' fees), shall
be charged to and paid by: (i) the REMIC Administrator, if such tax arises out
of or results from a breach by the REMIC Administrator of any of its obligations
under this Article X; (ii) the Trustee, if such tax arises out of or results
from a breach by the Trustee of any of its obligations under this Article X;
(iii) the Master Servicer, if such tax arises out of or results from a breach by
the Master Servicer of any of its obligations under Article III or this Article
X; (iv) the Special Servicer, if such tax arises out of or results from a breach
by the Special Servicer of any of its obligations under Article III or this
Article X; or (v) the Trust in all other instances. Any tax permitted to be
incurred by the Special Servicer pursuant to Section 3.17(a) shall be charged to
and paid by the Trust. Any such amounts payable by the Trust in respect of taxes
shall be paid by the Trustee at the direction of the REMIC Administrator out of
amounts on deposit in the REMIC I Distribution Account.
(h) The REMIC Administrator and, to the extent that records are
maintained thereby in the normal course of its business, each of the other
parties hereto shall, for federal income tax purposes, maintain books and
records with respect to each of REMIC I and REMIC II on a calendar year and on
an accrual basis. Such records with respect to REMIC I shall include, for each
Distribution Date, the applicable REMIC I Principal Balance, REMIC I Remittance
Rate, and each category of distribution on or with respect to the REMIC I
Regular Interests and the REMIC I Residual Interest.
(i) Following the Startup Day therefor, the Trustee shall not accept
any contributions of assets to REMIC I or REMIC II unless it shall have received
an Opinion of Counsel (at the expense of the party seeking to cause such
contribution) to the effect that the inclusion of such assets in such REMIC will
not cause: (i) such REMIC to fail to qualify as a REMIC at any time that any
Certificates are outstanding; or (ii) the imposition of any tax on such REMIC
under the REMIC Provisions or other applicable provisions of federal, state and
local law or ordinances.
(j) None of the REMIC Administrator, the Master Servicer, the
Special Servicer or the Trustee shall consent to or, to the extent it is within
the control of such Person, permit: (i) the sale or disposition of any of the
Mortgage Loans (except in connection with (A) a breach of any representation or
warranty of a Mortgage Loan Seller regarding the related Mortgage Loans or as
otherwise provided for in Section 2.03, (B) the foreclosure, default or imminent
default of a Mortgage Loan, including but not limited to, the sale or other
disposition of a Mortgaged Property acquired by deed-in-lieu of foreclosure, (C)
the bankruptcy of REMIC I or REMIC II, or (D) the termination of the Trust
pursuant to Article IX); (ii) the sale or disposition of any investments in the
Certificate Account or the REO Account for gain; or (iii) the acquisition of any
assets for the Trust Fund (other than a Mortgaged Property acquired through
foreclosure, deed-in-lieu of foreclosure or otherwise in respect of a Defaulted
Serviced Loan and other than Permitted Investments acquired in connection with
the investment of funds in the Certificate Account or the REO Account); in any
event unless it has received an Opinion of Counsel (from and at the expense of
the party seeking to cause such sale, disposition, or acquisition) to the effect
that such sale, disposition, or acquisition will not cause: (x) REMIC I or REMIC
II to fail to qualify as a REMIC at any time that any Certificates are
outstanding; or (y) the imposition of any tax on REMIC I or REMIC II under the
REMIC Provisions or other applicable provisions of federal, state and local law
or ordinances.
(k) Except as otherwise permitted by Section 3.17(a), none of the
REMIC Administrator, the Master Servicer, the Special Servicer or the Trustee
shall enter into any arrangement by which REMIC I or REMIC II will receive a fee
or other compensation for services or, to the extent it is within the control of
such Person, permit REMIC I or REMIC II to receive any income from assets other
than "qualified mortgages" as defined in Section 860G(a)(3) of the Code or
"permitted investments" as defined in Section 860G(a)(5) of the Code. At all
times as may be required by the Code, the REMIC Administrator shall make
reasonable efforts to ensure that substantially all of the assets of REMIC I and
REMIC II will consist of "qualified mortgages" as defined in Section 860G(a)(3)
of the Code and "permitted investments" as defined in Section 860G(a)(5) of the
Code.
Section 10.02 Depositor, Master Servicer, Special Servicer and
Trustee to Cooperate with REMIC Administrator.
(a) The Depositor shall provide or cause to be provided to the REMIC
Administrator, within ten days after the Closing Date, all information or data
that the REMIC Administrator reasonably determines to be relevant for tax
purposes as to the valuations and issue prices of the Certificates, including,
without limitation, the price, yield, prepayment assumption and projected cash
flow of the Certificates.
(b) The Master Servicer, the Special Servicer and the Trustee shall
each furnish such reports, certifications and information, and access to such
books and records maintained thereby, as may relate to the Certificates or the
Trust Fund and as shall be reasonably requested by the REMIC Administrator to
enable it to perform its duties hereunder.
Section 10.03 Fees of the REMIC Administrator.
In the event the Trustee and the REMIC Administrator are not the
same Person, the Trustee covenants and agrees to pay to the REMIC Administrator
from time to time, and the REMIC Administrator shall be entitled to, reasonable
compensation (as set forth in a written agreement between the Trustee and the
REMIC Administrator) for all services rendered by it in the exercise and
performance of any of the obligations and duties of the REMIC Administrator
hereunder.
Section 10.04 Use of Agents.
The REMIC Administrator may execute any of its obligations and
duties hereunder either directly or by or through agents or attorneys-in-fact
consented to by the Trustee, which consent shall not be unreasonably withheld;
provided that the REMIC Administrator shall not be relieved of its liabilities,
duties and obligations hereunder by reason of the use of any such agent or
attorney-in-fact.
Section 10.05 Grantor Trust Administration.
(a) The parties intend that the segregated pool of assets consisting
of: (i) the Excess Interest and the Excess Interest Distribution Account; (ii)
the Class A-2FL Regular Interest, the Class A-2FL Swap Contract, the Class A-2FL
Floating Rate Account and proceeds thereof and (iii) the Class A-JFL Regular
Interest, the Class A-JFL Swap Contract, the Class A-JFL Floating Rate Account
and proceeds thereof shall be treated as a "grantor trust" under the Code, and
the provisions thereof shall be interpreted consistently with this intention. In
furtherance of such intention with respect to the Grantor Trusts, the Trustee
shall file or cause to be filed annually with the IRS together with IRS Form
1041 or such other form as may be applicable and shall furnish or cause to be
furnished annually: (i) with respect to the Excess Interest Grantor Trust, to
the Holders of the Class V Certificates, their allocable share of income with
respect to Excess Interest as such amounts accrue or are received, as the case
may be, after the related Anticipated Repayment Date; (ii) with respect to the
Class A-2FL Grantor Trust, to the Class A-2FL Certificateholders, their
allocable shares of income and expense with respect to the Class A-2FL Regular
Interest and the Class A-2FL Swap Contract; and (iii) with respect to the Class
A-JFL Grantor Trust, to the Class A-JFL Certificateholders, their allocable
shares of income and expense with respect to the Class A-JFL Regular Interest
and the Class A-2FL Swap Contract, each at the time or times and in the manner
required by the Code. In addition, the Trustee shall use its best efforts to
obtain a taxpayer identification number as soon as possible after the Closing
Date (but no later than the first payment date under the Class A-2FL Swap
Contract and the Class A-JFL Swap Contract) for the Class A-2FL Grantor Trust
and the Class A-JFL Grantor Trust and shall deliver or cause to be delivered the
federal taxpayer identification number of each of the Class A-2FL Grantor Trust
and the Class A-JFL Grantor Trust on an IRS Form W-9 to the Class A-2FL Swap
Counterparty or the Class A-2FL Swap Counterparty (as applicable) and, if
requested by the Class A-2FL Swap Counterparty or the Class A-2FL Swap
Counterparty (as applicable) (unless not permitted under federal income tax
law), an applicable IRS Form W-8IMY. Under no circumstances shall the Trustee,
the Master Servicer or the Special Servicer have the power to vary the
investment of the Class A-2FL Certificateholders, the Class A-JFL
Certificateholders or the Class V Certificateholders in the related Grantor
Trust to take advantage of variations in the market rate of interest to improve
their rate of return.
(b) Each Grantor Trust shall be treated as a WHFIT that is a
NMWHFIT. The REMIC Administrator shall report as required under the WHFIT
Regulations, provided that the REMIC Administrator receives on a timely basis
any and all information reasonably necessary for it to do so. The REMIC
Administrator is hereby directed to assume that DTC is the only "middleman" (as
such term is defined in the WHFIT Regulations) unless the Depositor provides the
REMIC Administrator with the identities of other "middlemen" that are
Certificateholders. The REMIC Administrator shall be entitled to rely on the
first sentence of this Section 10.05(b) and shall be entitled to indemnification
in accordance with the terms of this Agreement in the event that the Internal
Revenue Service makes a determination that the first sentence of this Section
10.05(b) is incorrect.
(c) The REMIC Administrator, in its discretion, shall report
required WHFIT information using either the cash or accrual method, except to
the extent the WHFIT Regulations specifically require a different method. The
REMIC Administrator is under no obligation to determine whether any
Certificateholder or other beneficial owner of a Certificate, to the extent the
REMIC Administrator knows of any other beneficial owner of a Certificate, uses
the cash or accrual method. The REMIC Administrator shall make available
information as required by the WHFIT Regulations to Certificateholders annually.
In addition, the REMIC Administrator is not responsible or liable for providing
subsequently amended, revised or updated information to any Certificateholder,
unless requested by the Certificateholder.
(d) The REMIC Administrator shall not be liable for failure to meet
the reporting requirements of the WHFIT Regulations nor for any penalties
thereunder if such failure is due to: (i) the lack of reasonably necessary
information being provided to the REMIC Administrator, (ii) incomplete,
inaccurate or untimely information being provided to the REMIC Administrator or
(iii) the inability of the REMIC Administrator, after good faith efforts, to
alter its existing information reporting systems to capture information
necessary to fully comply with the WHFIT Regulations for the 2007 calendar year.
Absent receipt of information regarding any sale of securities, including the
price, amount of proceeds and date of sale from the beneficial owner thereof or
the Depositor, the REMIC Administrator will assume there is no secondary market
trading of WHFIT interests.
(e) To the extent required by the WHFIT Regulations, the REMIC
Administrator shall use reasonable efforts to publish on an appropriate website
the CUSIP Numbers for the Certificates that represent ownership of a WHFIT. The
CUSIP Numbers so published shall represent the Rule 144A CUSIP Numbers. The
REMIC Administrator shall make reasonable good faith efforts to keep the website
accurate and updated to the extent CUSIP Numbers have been received. The REMIC
Administrator is not liable for investor reporting delays that result from the
receipt of inaccurate or untimely CUSIP Number information.
(f) The REMIC Administrator shall be entitled to additional
reasonable compensation for changes in reporting required in respect of the
WHFIT Regulations that arise as a result of a change in the WHFIT Regulations or
a change in interpretation of the WHFIT Regulations by the Internal Revenue
Service, if such change requires, in the REMIC Administrator's sole discretion,
a material increase in the REMIC Administrator's reporting obligations in
respect of the related Grantor Trust.
ARTICLE XI
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 11.01 Intent of the Parties; Reasonableness. The parties
hereto acknowledge and agree that the purpose of Article XI of this Agreement is
to facilitate compliance by the Depositor with the provisions of Regulation AB
and the related rules and regulations of the Commission. Except with respect to
Section 11.09 and Section 11.11, the Depositor or the Master Servicer shall not
exercise their right to request delivery of information or other performance
under these provisions other than reasonably and in good faith, or for purposes
other than compliance with the Securities Act, the Exchange Act, the
Xxxxxxxx-Xxxxx Act and, in each case, the rules and regulations of the
Commission thereunder. The parties hereto acknowledge that interpretations of
the requirements of Regulation AB may change over time due to interpretive
guidance provided by the Commission or its staff, and agree to comply with
reasonable requests made by the Depositor or the Master Servicer in good faith
for delivery of information under these provisions on the basis of evolving
interpretations of Regulation AB. In connection with the Banc of America
Commercial Mortgage Inc., Commercial Mortgage Pass-Through Certificates, Series
2007-2, each of the Master Servicer, the Special Servicer and the Trustee shall
cooperate fully with the Depositor and the Master Servicer, as applicable, to
deliver to the Depositor or the Trustee, as applicable (including any of their
assignees or designees), any and all information in its possession necessary in
the good faith determination of the Depositor or the Trustee, as applicable, to
permit the Depositor to comply with the provisions of Regulation AB, together
with such disclosures relating to the Master Servicer, the Special Servicer and
the Trustee, as applicable, and any Additional Servicer, Subcontractor,
Servicing Function Participant or Sub-Servicer, or the servicing of the Mortgage
Loans, reasonably believed by the Depositor or the Master Servicer, as
applicable, to be necessary in order to effect such compliance. Each party to
this Agreement shall have a reasonable period of time to comply with any written
request made under this Section 11.01, but in any event, shall, upon reasonable
advance written request, provide information in sufficient time to allow the
Depositor or the Trustee, as applicable, to satisfy any related filing
requirements.
Section 11.02 Succession; Subcontractors.(a) (a) In connection with
the succession to the Master Servicer and Special Servicer or any Sub-Servicer
contemplated by Item 1108(a)(2) of Regulation AB as servicer or Sub-Servicer
under this Agreement by any Person (i) into which the Master Servicer and
Special Servicer or such Sub-Servicer may be merged or consolidated, or (ii)
which may be appointed as a successor to the Master Servicer and Special
Servicer or any Sub-Servicer, the Master Servicer and Special Servicer shall
provide to the Depositor, at least five Business Days prior to the effective
date of such succession or appointment, (x) written notice to the Depositor of
such succession or appointment and (y) in writing and in form and substance
reasonably satisfactory to the Depositor, all information relating to such
successor reasonably requested by the Depositor in order to comply with its
reporting obligation under Item 6.02 of Form 8-K pursuant to the Exchange Act
(if such reports under the Exchange Act are required to be filed under the
Exchange Act) pursuant to Section 11.07; provided, however, if disclosing such
information prior to such effective date would violate any applicable law or
confidentiality agreement, the Master Servicer or Special Servicer, as
applicable, shall submit such disclosure to the Depositor no later than the
second Business Day after such effective date of such succession or appointment.
(b) Each of the Master Servicer, the Special Servicer, the
Sub-Servicer and the Trustee (each of the Master Servicer, the Special Servicer
and the Trustee and each Sub-Servicer, for purposes of this paragraph, a
"Servicer") is permitted to utilize one or more Subcontractors to perform
certain of its obligations hereunder. Such Servicer shall promptly upon request
provide to the Depositor a written description (in form and substance reasonably
satisfactory to the Depositor) of the role and function of each Subcontractor
that is a Servicing Function Participant utilized by such Servicer, specifying
(i) the identity of each Subcontractor, and (ii) which elements of the Servicing
Criteria will be addressed in assessments of compliance provided by such
Subcontractor. As a condition to the utilization by such Servicer of any
Subcontractor determined to be a Servicing Function Participant, such Servicer
shall use commercially reasonable efforts (including enforcement as such term is
described in Section 3.22(c)) to cause any such Subcontractor used by such
Servicer to comply with the provisions of Section 11.10 and Section 11.11 to the
same extent as if such Subcontractor were such Servicer. Such Servicer shall use
commercially reasonable efforts (including enforcement as such term is described
in Section 3.22(c)) to obtain from each such Subcontractor and delivering to the
applicable Persons any assessment of compliance report and related accountant's
attestation required to be delivered by such Subcontractor under Section 11.10
and Section 11.11, in each case, as and when required to be delivered.
(c) Notwithstanding the foregoing, if a Servicer engages a
Subcontractor in connection with the performance of any of its duties under this
Agreement, such Servicer shall be responsible for determining whether such
Subcontractor is a "servicer" within the meaning of Item 1101 of Regulation AB
and whether any such affiliate or third-party vendor meets the criteria in Item
1108(a)(2)(i), (ii) or (iii) of Regulation AB. If a Servicer determines,
pursuant to the preceding sentence, that such Subcontractor is a "servicer"
within the meaning of Item 1101 of Regulation AB and meets the criteria in Item
1108(a)(2)(i), (ii) or (iii) of Regulation AB, then such Subcontractor shall be
deemed to be an Additional Servicer for purposes of this Agreement, the
engagement of such Additional Servicer shall not be effective unless and until
notice is given to the Depositor and the Trustee of any such Additional Servicer
and Sub-Servicing Agreement or other servicing arrangement. Such notice shall
contain all information reasonably necessary to enable the Trustee to accurately
and timely report the event under Item 6.02 of Form 8-K pursuant to the Exchange
Act (if such reports under the Exchange Act are required to be filed under the
Exchange Act) pursuant to Section 11.07.
(d) In connection with the succession to the Trustee under this
Agreement by any Person (i) into which the Trustee may be merged or
consolidated, or (ii) which may be appointed as a successor to the Trustee, the
Trustee shall notify the Depositor, at least 10 Business Days prior to the
effective date of such succession or appointment and shall furnish to the
Depositor in writing and in form and substance reasonably satisfactory to the
Depositor, all information reasonably necessary for the Trustee to accurately
and timely report, pursuant to Section 11.07, the event under Item 6.02 of Form
8-K pursuant to the Exchange Act (if such reports under the Exchange Act are
required to be filed under the Exchange Act); provided, however, if disclosing
such information prior to such effective date would violate any applicable law
or confidentiality agreement, the Trustee shall submit such disclosure to the
Depositor no later than the second Business Day after such effective date of
such succession or appointment.
Section 11.03 Filing Obligations. (a) The Master Servicer, the
Special Servicer and the Trustee shall reasonably cooperate with the Depositor
in connection with the satisfaction of the Trust's reporting requirements under
the Exchange Act. The Trustee shall prepare for execution by the Depositor any
Forms 8-K, 10-D and 10-K required by the Exchange Act in order to permit the
timely filing thereof, and the Trustee shall file (via the Commission's
Electronic Data Gathering and Retrieval System) such Forms executed by the
Depositor.
(b) In the event that the Trustee is unable to timely file with the
Commission all or any required portion of any Form 8-K, 10-D or 10-K required to
be filed by this Agreement because required disclosure information was either
not delivered to it or delivered to it after the delivery deadlines set forth in
this Agreement, the Trustee will promptly notify the Depositor and whichever
party hereto failed to deliver, or delivered after any applicable deadline, any
required disclosure information. In the case of Forms 10-D and 10-K, the
Depositor, the Master Servicer and the Trustee will thereupon cooperate to
prepare and file a Form 12b-25 and a Form 10-D/A or Form 10-K/A, as applicable,
pursuant to Rule 12b-25 of the Exchange Act. In the case of Form 8-K, the
Trustee will, upon receipt of all required Form 8-K Disclosure Information and
upon direction of the Depositor, include such disclosure information on the next
Form 10-D. In the event that any previously filed Form 8-K, Form 10-D or Form
10-K needs to be amended, the Trustee will notify the Depositor, and the parties
hereto will cooperate to prepare any necessary Form 8-K/A, Form 10-D/A or Form
10-K/A; provided, however, the Trustee will not be required to notify the
Depositor or any other party hereto in advance of amending Form 10-D where such
amendment is solely for the purpose of re-stating the Distribution Date
Statement. Any Form 15, Form 12b-25 or any amendment to Form 8-K, Form 10-D or
Form 10-K shall be signed by an officer of the Depositor. The parties hereto
acknowledge that the performance by the Trustee of its duties under Section
11.08 related to the timely preparation and filing of Form 15, a Form 12b-25 or
any amendment to Form 8-K, Form 10-D or Form 10-K is contingent upon such
parties observing all applicable deadlines in the performance of their duties
under Sections 11.03, 11.04, 11.05, 11.07, 11.08, 11.09, 11.10 and 11.11. The
Trustee shall have no liability for any loss, expense, damage, claim arising out
of or with respect to any failure to properly prepare, arrange for execution
and/or timely file any such Form 15, Form 12b-25 or any amendments to Forms 8-K,
Form 10-D or Form 10-K, where such failure results from the Trustee's inability
or failure to receive, on a timely basis, any information from any other party
hereto needed to prepare, arrange for execution or file such Form 15, Form
12b-25 or any amendments to Forms 8-K, Form 10-D or Form 10-K, not resulting
from its own negligence, bad faith or willful misconduct.
Section 11.04 Form 10-D Filings. (a) Within 15 days after each
Distribution Date (subject to permitted extensions under the Exchange Act), the
Trustee shall prepare and file on behalf of the Trust any Form 10-D required by
the Exchange Act, in form and substance as required by the Exchange Act. The
Trustee shall file each Form 10-D with a copy of the related Statement to
Certificateholders attached thereto. Any disclosure in addition to the Statement
to Certificateholders that is required to be included on Form 10-D ("Additional
Form 10-D Disclosure") shall pursuant to the paragraph immediately below, be
reported by the parties set forth on Schedule IX to the Depositor and the
Trustee and approved by the Depositor, and the Trustee will have no duty or
liability for any failure hereunder to determine or prepare any Additional Form
10-D Disclosure absent such reporting, direction and approval; provided,
however, the Trustee shall promptly notify the Depositor of any such report that
it receives.
For so long as the Trust is subject to the reporting requirements of
the Exchange Act, as set forth on Schedule IX hereto, within five calendar days
after the related Distribution Date, (i) the parties listed on Schedule IX
hereto shall be required to provide to the Trustee and the Depositor, to the
extent a responsible officer has actual knowledge thereof, in XXXXX-compatible
format, or in such other format as otherwise agreed upon by the Trustee and the
Depositor and such party, the form and substance of the Additional Form 10-D
Disclosure described on Schedule IX hereto applicable to such party, (ii) the
parties listed on Schedule IX hereto shall include with such Additional Form
10-D Disclosure, an Additional Disclosure Notification in the form attached
hereto as Schedule XII and (iii) the Depositor shall approve, as to form and
substance, or disapprove, as the case may be, the inclusion of the Additional
Form 10-D Disclosure on Form 10-D. The Trustee has no duty under this Agreement
to monitor or enforce the performance by the parties listed on Schedule IX
hereto of their duties under this paragraph or proactively solicit or procure
from such parties any Additional Form 10-D Disclosure information. The Depositor
will be responsible for any reasonable fees assessed and any expenses incurred
by the Trustee in connection with including any Additional Form 10-D Disclosure
on Form 10-D pursuant to this paragraph.
(b) After preparing the Form 10-D, the Trustee shall forward
electronically a copy of the Form 10-D to the Depositor for review and approval.
No later than two calendar days prior to the 15th calendar day after the related
Distribution Date, a duly authorized representative of the Depositor shall sign
the Form 10-D and return an electronic or fax copy of such signed Form 10-D
(with an original executed hard copy to follow by overnight mail) to the
Trustee. If a Form 10-D cannot be filed on time or if a previously filed Form
10-D needs to be amended, the Trustee will follow the procedures set forth in
Section 11.03(b). Promptly after filing with the Commission, the Trustee will
make available on its internet website a final executed copy of each Form 10-D
prepared and filed by the Trustee. The signing party at the Depositor can be
contacted at: Xxxxxxx X. Xxxxx, Banc of America Securities LLC, 000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Telephone No. (000) 000-0000, and Xxxx
X. Xxxxxxx, Esq., Bank of America Corporation, 000 Xxxxx Xxxxx Xxxxxx, 30th
Floor, NC1-002-29 01, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Telephone No. (704)
000-0000. The parties hereto acknowledge that the performance by the Trustee of
its duties under this Section 11.04(b) related to the timely preparation and
filing of Form 10-D is contingent upon the parties observing all applicable
deadlines in the performance of their duties under this Section 11.04. The
Trustee shall have no liability for any loss, expense, damage, or claim arising
out of or with respect to any failure to properly prepare, arrange for execution
and/or timely file such Form 10-D, where such failure results from the Trustee's
inability or failure to receive, on a timely basis, any information from any
party hereto needed to prepare, arrange for execution or file such Form 10-D,
not resulting from its own negligence, bad faith or willful misconduct.
Form 10-D requires the registrant to indicate (by checking "yes" or
"no") that it "(1) has filed all reports required to be filed by Section 13 or
15(d) of the Exchange Act during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days." The Depositor shall
notify the Trustee in writing, no later than the fifth calendar day after the
related Distribution Date with respect to the filing of a report on Form 10-D if
the answer to the questions should be "no". The Trustee shall be entitled to
rely on such representations in preparing, executing and/or filing any Form
10-D.
(c) With respect to the Beacon Seattle & DC Portfolio Significant
Obligor, the Master Servicer shall forward all such information received from
the Beacon Seattle & DC Portfolio Master Servicer and/or the Beacon Seattle & DC
Portfolio Trustee. In the event that the Master Servicer does not receive
financial information satisfactory to comply with Item 6 of Form 10-D or Item
1112(b) of Form 10-K, as the case may be, of the Beacon Seattle & DC Portfolio
Significant Obligor from the Beacon Seattle & DC Portfolio Pooling Agreement
Master Servicer or the Beacon Seattle & DC Portfolio Pooling Agreement Special
Servicer, as applicable, within 10 Business Days after the date such financial
information is required to be delivered under the related loan documents (which
for the avoidance of doubt is on or before the 45th day after the end of each
fiscal quarter (based on such Borrower's fiscal year (which is defined in such
loan agreement as each twelve month period commencing on January 1 and ending on
December 31)), except for the quarter ending June 30, 2007 for which delivery
will not be required to be delivered prior to September 1, 2007 and the last
fiscal quarter of each year for which delivery will not be required to be
delivered prior to March 1 of the following year), the Master Servicer shall
notify the Depositor, the Trustee, Bear Xxxxxxx Commercial Mortgage, Inc. (as
the loan seller related to Beacon Seattle & DC Portfolio Mortgage Loan) and the
Beacon Seattle & DC Portfolio Pooling Agreement Master Servicer or the Beacon
Seattle & DC Portfolio Pooling Agreement Special Servicer, as applicable, that
it has not received them. The Master Servicer shall use efforts consistent with
the Servicing Standard (taking into account, in addition, the ongoing reporting
obligations of the Depositor under the Exchange Act) to continue to attempt to
obtain such financial information from the Beacon Seattle & DC Portfolio Pooling
Agreement Master Servicer or the Beacon Seattle & DC Portfolio Pooling Agreement
Special Servicer, as applicable. The Master Servicer shall retain written
evidence of each instance in which it attempts to contact the Beacon Seattle &
DC Portfolio Pooling Agreement Master Servicer or the Beacon Seattle & DC
Portfolio Pooling Agreement Special Servicer, as applicable, to obtain the
required financial information and is unsuccessful and, within five Business
Days prior to the date in which a Form 10-D or Form 10-K, as applicable, is
required to be filed by the Trust, shall forward an Officer's Certificate
evidencing its attempts to obtain this information to the Trustee and the
Depositor. The Officer's Certificate should be addressed to the Trustee as
follows: Xxxxx Fargo Bank, N.A., 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx
00000, Attention SEC Reporting Group, or e-mailed to
xxx.xxx.xxxxxxxxxxxx@xxxxxxxxxx.xxx.
Section 11.05 Form 10-K Filings. (a) Within 90 days after the end of
each fiscal year of the Trust or such earlier date as may be required by the
Exchange Act (the "10-K Filing Deadline"), commencing in March 2008, the Trustee
shall prepare and file on behalf of the Trust a Form 10-K, in form and substance
as required by the Exchange Act. Each such Form 10-K shall include the following
items, in each case to the extent they have been delivered to the Trustee within
the applicable time frames set forth in this Agreement:
(i) an annual compliance statement for the Master Servicer, the
Special Servicer, each Additional Servicer and the Trustee, as described
under Section 11.09;
(ii) (A) the annual reports on assessment of compliance with
servicing criteria for the Trustee, the Master Servicer, the Special
Servicer, any Additional Servicer, each Sub-Servicer engaged by the Master
Servicer or the Special Servicer and each Servicing Function Participant
utilized by the Master Servicer, the Special Servicer or the Trustee, as
described under Section 11.10, and (B) if any such report on assessment of
compliance with servicing criteria described under Section 11.10
identifies any material instance of noncompliance, disclosure identifying
such instance of noncompliance, or if such report on assessment of
compliance with servicing criteria described under Section 11.10 is not
included as an exhibit to such Form 10-K, disclosure that such report is
not included and an explanation why such report is not included;
(iii) (A) the registered public accounting firm attestation report
for the Trustee, the Master Servicer, the Special Servicer, any Additional
Servicer, each Sub-Servicer engaged by the Master Servicer and the Special
Servicer and each Servicing Function Participant utilized by the Master
Servicer, the Special Servicer or the Trustee, as described under Section
11.11, and (B) if any registered public accounting firm attestation report
described under Section 11.11 identifies any material instance of
noncompliance, disclosure identifying such instance of noncompliance, or
if any such registered public accounting firm attestation report is not
included as an exhibit to such Form 10-K, disclosure that such report is
not included and an explanation why such report is not included; and
(iv) a certification in the form attached hereto as Exhibit K, with
such changes as may be necessary or appropriate as a result of changes
promulgated by the Commission (the "Xxxxxxxx-Xxxxx Certification"), which
shall, except as described below, be signed by the senior officer of the
Depositor in charge of securitization.
Any disclosure or information in addition to clauses (i) through
(iv) of this Section 11.05 that is required to be included on Form 10-K
("Additional Form 10-K Disclosure") shall, pursuant to the paragraph immediately
below, be reported by the parties set forth on Schedule X to the Depositor and
the Trustee, and the Trustee will have no duty or liability for any failure
hereunder to determine or prepare any Additional Form 10-K Disclosure absent
such reporting, direction and approval; provided, however, the Trustee shall
promptly notify the Depositor of any Additional Form 10-K Disclosure that it
receives.
For so long as the Trust is subject to the reporting requirements of
the Exchange Act, no later than March 15, commencing in March 2008 (i) the
parties listed on Schedule X hereto shall be required to provide to the Trustee
and the Depositor, to the extent that a responsible officer has actual knowledge
thereof, in XXXXX-compatible format, or in such other format as otherwise agreed
upon by the Trustee and the Depositor and such party, the form and substance of
the Additional Form 10-K Disclosure described on Schedule X hereto applicable to
such party, (ii) the parties listed on Schedule X hereto shall include with such
Additional Form 10-K Disclosure, an Additional Disclosure Notification in the
form attached hereto as Schedule XII, (iii) the Depositor shall approve, as to
form and substance, or disapprove, as the case may be, the inclusion of the
Additional Form 10-K Disclosure on Form 10-K and (iv) the Trustee shall, at any
time prior to filing the related Form 10-K, provide prompt notice to the
Depositor to the extent that the Trustee is notified of an event reportable on
Form 10-K for which it has not received the necessary Additional Form 10-K
Disclosure from the applicable party. The Trustee has no duty under this
Agreement to monitor or enforce the performance by the parties listed on
Schedule X hereto of their duties under this paragraph or proactively solicit or
procure from such parties any Additional Form 10-K Disclosure information. The
Depositor will be responsible for any reasonable fees assessed and expenses
incurred by the Trustee in connection with including any Additional Form 10-K
Disclosure on Form 10-K pursuant to this paragraph.
With respect to the Beacon Seattle & DC Portfolio Significant
Obligor, the Master Servicer shall forward all such information received from
the Beacon Seattle & DC Portfolio Master Servicer and/or the Beacon Seattle & DC
Portfolio Trustee. In the event that the Master Servicer does not receive
financial information satisfactory to comply with Item 6 of Form 10-D or Item
1112(b) of Form 10-K, as the case may be, of the Beacon Seattle & DC Portfolio
Significant Obligor from the Beacon Seattle & DC Portfolio Pooling Agreement
Master Servicer or the Beacon Seattle & DC Portfolio Pooling Agreement Special
Servicer, as applicable, within 10 Business Days after the date such financial
information is required to be delivered under the related loan documents (which
for the avoidance of doubt is on or before the 45th day after the end of each
fiscal quarter (based on such Borrower's fiscal year (which is defined in such
loan agreement as each twelve month period commencing on January 1 and ending on
December 31)), except for the quarter ending June 30, 2007 for which delivery
will not be required to be delivered prior to September 1, 2007 and the last
fiscal quarter of each year for which delivery will not be required to be
delivered prior to March 1 of the following year), the Master Servicer shall
notify the Depositor, the Trustee, Bear Xxxxxxx Commercial Mortgage, Inc. (as
the loan seller related to Beacon Seattle & DC Portfolio Mortgage Loan) and the
Beacon Seattle & DC Portfolio Pooling Agreement Master Servicer or the Beacon
Seattle & DC Portfolio Pooling Agreement Special Servicer, as applicable, that
it has not received them. The Master Servicer shall use efforts consistent with
the Servicing Standard (taking into account, in addition, the ongoing reporting
obligations of the Depositor under the Exchange Act) to continue to attempt to
obtain such financial information from the Beacon Seattle & DC Portfolio Pooling
Agreement Master Servicer or the Beacon Seattle & DC Portfolio Pooling Agreement
Special Servicer, as applicable. The Master Servicer shall retain written
evidence of each instance in which it attempts to contact the Beacon Seattle &
DC Portfolio Pooling Agreement Master Servicer or the Beacon Seattle & DC
Portfolio Pooling Agreement Special Servicer, as applicable, to obtain the
required financial information and is unsuccessful and, within five Business
Days prior to the date in which a Form 10-D or Form 10-K, as applicable, is
required to be filed by the Trust, shall forward an Officer's Certificate
evidencing its attempts to obtain this information to the Trustee and the
Depositor. The Officer's Certificate should be addressed to the Trustee as
follows: Xxxxx Fargo Bank, N.A., 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx
00000, Attention SEC Reporting Group, or e-mailed to
xxx.xxx.xxxxxxxxxxxx@xxxxxxxxxx.xxx.
(b) After preparing the Form 10-K, the Trustee shall forward
electronically a copy of the Form 10-K to the Depositor for review and approval
no later than five Business Days prior to the 10-K Filing Deadline. No later
than 5:00 p.m. Eastern Time on the fourth Business Day prior to the 10-K Filing
Deadline, the senior officer in charge of securitization of the Depositor shall
sign the Form 10-K and return an electronic or fax copy of such signed Form 10-K
(with an original executed hard copy to follow by overnight mail) to the
Trustee. If a Form 10-K cannot be filed on time or if a previously filed Form
10-K needs to be amended, the Trustee will follow the procedures set forth in
this Section 11.03(b). Promptly after filing with the Commission, the Trustee
will make available on its internet website a final executed copy of each Form
10-K prepared and filed by the Trustee. The signing party at the Depositor can
be contacted at: Xxxxxxx X. Xxxxx, Banc of America Securities LLC, 000 Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Telephone No. (000) 000-0000, and
Xxxx X. Xxxxxxx, Esq., Bank of America Corporation, 000 Xxxxx Xxxxx Xxxxxx, 00xx
Xxxxx, XX0 000-00 00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Telephone No. (704)
000-0000. The parties hereto acknowledge that the performance by the Trustee of
its duties under this Section 11.05 related to the timely preparation and filing
of Form 10-K is contingent upon such parties observing all applicable deadlines
in the performance of their duties under this Section 11.05. The Trustee shall
have no liability for any loss, expense, damage, claim arising out of or with
respect to any failure to properly prepare, arrange for execution and/or timely
file such Form 10-K, where such failure results from the Trustee's inability or
failure to receive, on a timely basis, any information from any party hereto
needed to prepare, arrange for execution or file such Form 10-K, not resulting
from its own negligence, bad faith or willful misconduct.
Form 10-K requires the registrant to indicate (by checking "yes" or
"no") that it "(1) has filed all reports required to be filed by Section 13 or
15(d) of the Exchange Act during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days." The Depositor shall
notify the Trustee in writing, no later than the 15th calendar day of March in
any year in which the Trust is required to file a Form 10-K if the answer to the
questions should be "no". The Trustee shall be entitled to rely on such
representations in preparing, executing and/or filing any Form 10-K.
Section 11.06 Xxxxxxxx-Xxxxx Certification. Each Form 10-K shall
include a Xxxxxxxx-Xxxxx Certification in the form attached as Exhibit K
required to be included therewith pursuant to the Xxxxxxxx-Xxxxx Act. The Master
Servicer, the Special Servicer, any Additional Servicer and the Trustee shall,
and the Master Servicer, the Special Servicer and the Trustee shall use
commercially reasonable efforts (including enforcement as such term is described
in Section 3.22(c)) to cause each Servicing Function Participant with which it
has entered into a servicing relationship with respect to the Mortgage Loans to,
provide to the Person who signs the Xxxxxxxx-Xxxxx Certification (the
"Certifying Person") a certification in the form attached hereto as Exhibit L,
on which the Certifying Person, the entity for which the Certifying Person acts
as an officer (if the Certifying Person is an individual), and such entity's
officers, directors and Affiliates (collectively with the Certifying Person,
"Certification Parties") can reasonably rely. In addition, in the event that the
Companion Loan related to a Whole Loan is deposited into a commercial mortgage
securitization, each Reporting Servicer shall provide to the Person who signs
the Xxxxxxxx-Xxxxx Certification with respect to the securitization of the
Companion Loan related to a Whole Loan a certification in the form attached
hereto as Exhibit K (a "Performance Certification") (which shall address the
matters contained in such certification, but solely with respect to the related
Companion Loan) on which such Person, the entity for which the Person acts as an
officer (if the Person is an individual), and such entity's officers, directors
and Affiliates can reasonably rely. With respect to any Non-Serviced Loan
serviced under a Non-Serviced Loan Pooling and Servicing Agreement, the Master
Servicer will use its reasonable efforts to procure a Xxxxxxxx-Xxxxx back-up
certification from the Non-Serviced Loan Master Servicer, Non-Serviced Loan
Special Servicer and the Non-Serviced Loan Trustee in form and substance similar
to a Performance Certification. The senior officer in charge of the
securitization for the Depositor shall serve as the Certifying Person. In
addition, the Master Servicer, the Special Servicer, any Additional Servicer,
the Trustee and any Servicing Function Participant shall execute a reasonable
reliance certificate to enable the Certification Parties to rely upon each (i)
annual compliance statement provided pursuant to Section 11.09, (ii) annual
report on assessment of compliance with servicing criteria provided pursuant to
Section 11.10 and (iii) accountant's report provided pursuant to Section 11.11,
and shall include a certification that each such annual compliance statement or
report discloses any deficiencies or defaults described to the registered public
accountants of the Master Servicer, the Special Servicer, any Additional
Servicer, the Trustee or any Servicing Function Participant to enable such
accountants to render the attestation reports provided for in Section 11.11. In
the event the Master Servicer, the Special Servicer, any Additional Servicer,
the Trustee or any Servicing Function Participant is terminated or resigns
pursuant to the terms of this Agreement, or any applicable sub-servicing
agreement or primary servicing agreement, as the case may be, such party shall
provide a certification to the Certifying Person pursuant to this Section 11.06
with respect to the period of time it was subject to this Agreement or the
applicable sub-servicing or primary servicing agreement, as the case may be.
Section 11.07 Form 8-K Filings. Within four (4) Business Days after
the occurrence of an event requiring disclosure on Form 8-K (each such event, a
"Reportable Event"), and if requested by the Depositor, the Trustee shall
prepare and file on behalf of the Trust any Form 8-K, as required by the
Exchange Act, provided that the Depositor shall file the initial Form 8-K in
connection with the issuance of the Certificates. Any disclosure or information
related to a Reportable Event or that is otherwise required to be included on
Form 8-K ("Form 8-K Disclosure Information") shall, pursuant to the paragraph
immediately below, be reported by the parties set forth on Schedule XI hereto to
the Depositor and the Trustee and approved by the Depositor, and the Trustee
will have no duty or liability for any failure hereunder to determine or prepare
any Form 8-K Disclosure Information absent such reporting, direction and
approval; provided, however, the Trustee shall promptly notify the Depositor of
any Form 8-K Disclosure that it receives.
As set forth on Schedule XI hereto, for so long as the Trust is
subject to the Exchange Act reporting requirements, no later than the end of
business on the second Business Day after the occurrence of a Reportable Event
(i) the parties listed on Schedule XI hereto shall be required to provide to the
Trustee and the Depositor, to the extent a responsible officer has actual
knowledge thereof, in XXXXX-compatible format, or in such other format as
otherwise agreed upon by the Trustee and the Depositor and such party, the form
and substance of the Form 8-K Disclosure Information described on Schedule XI
hereto applicable to such party, (ii) the parties listed on Schedule XI hereto
shall include with such additional Form 8-K Disclosure ("Additional Form 8-K
Disclosure"), an Additional Disclosure Notification in the form attached hereto
as Schedule XII; and (iii) the Depositor shall approve, as to form and
substance, or disapprove, as the case may be, the inclusion of the Additional
Form 8-K Disclosure on Form 8-K. . The Trustee has no duty under this Agreement
to monitor or enforce the performance by the parties listed on Schedule XI
hereto of their duties under this paragraph or proactively solicit or procure
from such parties any Form 8-K Disclosure Information. The Depositor will be
responsible for any reasonable fees assessed and out-of-pocket expenses incurred
by the Trustee in connection with including any Form 8-K Disclosure Information
on Form 8-K pursuant to this paragraph.
After preparing the Form 8-K, the Trustee shall forward
electronically a copy of the Form 8-K to the Depositor for review and approval
no later than the third Business Day after the Reportable Event (but in no event
earlier than 24 hours after having received the Form 8-K Disclosure Information
pursuant to the immediately preceding paragraph). No later than the close of
business on the third Business Day after the Reportable Event, the Depositor
shall notify the Trustee of any changes to or approval of such Form 8-K. No
later than Noon (New York City time) on the fourth Business Day after the
Reportable Event, a duly authorized representative of the Depositor shall sign
the Form 8-K and return an electronic or fax copy of such signed Form 8-K (with
an original executed hard copy to follow by overnight mail) to the Trustee. If a
Form 8-K cannot be filed on time or if a previously filed Form 8-K needs to be
amended, the Trustee will follow the procedures set forth in this Section 11.07.
Promptly after filing with the Commission, the Trustee will, make available on
its internet website a final executed copy of each Form 8-K prepared by the
Trustee. The signing party at the Depositor can be contacted at Xxxxxxx X.
Xxxxx, Banc of America Securities LLC, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000, Telephone No. (000) 000-0000, and Xxxx X. Xxxxxxx, Esq., Bank of
America Corporation, 000 Xxxxx Xxxxx Xxxxxx, 30th Floor, NC1-002-29-01,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Telephone No. (000) 000-0000. The parties
hereto acknowledge that the performance by the Trustee of its duties under this
Section 11.07 related to the timely preparation and filing of Form 8-K is
contingent upon such parties observing all applicable deadlines in the
performance of their duties under this Section 11.07. The Trustee shall have no
liability for any loss, expense, damage, claim arising out of or with respect to
any failure to properly prepare, arrange for execution and/or timely file such
Form 8-K, where such failure results from the Trustee's inability or failure to
receive, on a timely basis, any information from any party hereto needed to
prepare, arrange for execution or file such Form 8-K, not resulting from its own
negligence, bad faith or willful misconduct.
Section 11.08 Form 15 Filing. On or prior to January 30 of the first
year in which the Trustee is able to do so under applicable law, the Trustee
shall prepare and file a Form 15 Suspension Notification relating to the
automatic suspension of reporting in respect of the Trust under the Exchange
Act. If at the beginning of any year after the filing of a Form 15 Suspension
Notification, if the number of Certificateholders of record exceeds the number
set forth in Section 15(d) of the Exchange Act that would cause the Trust to
again become subject to the reporting requirements of the Exchange Act, the
Trustee shall recommence preparing and filing reports on Forms 10-D, 10-K and
8-K as required pursuant to Section 11.04, Section 11.05 and Section 11.07.
With respect to any reporting period occurring after the filing of
Form 15, the obligations of the parties to this Agreement under Sections 11.01,
11.02, 11.04, 11.05, 11.06 and 11.07 shall be suspended for so long as the Trust
is not subject to the reporting requirements of the Exchange Act. The Trustee
shall promptly notify (which notice, notwithstanding the provisions of Section
12.05, may be sent by facsimile, telephone or by email and which shall include
the identity of those Reporting Servicers who did not deliver such information)
the Depositor and each Reporting Servicer that failed to deliver such
information, if all, or any portion of, any required disclosure information to
be included in any Form 8-K, Form 10-D or Form 10-K required to be filed
pursuant to this Agreement is not delivered to it within the delivery deadlines
set forth in this Agreement (including annual compliance statements pursuant to
Section 11.09, annual reports on assessment of compliance with servicing
criteria pursuant to Section 11.10 and attestation reports pursuant to Section
11.11) (exclusive of any grace or cure periods), but only to the extent the
Trustee has actual knowledge that the Master Servicer or Special Servicer
required to provide such disclosure information has not done so. Such notice
does not affect the tolling of any grace or cure period with respect to the
deadline of any obligation of any party contained in this Article XI.
Section 11.09 Annual Compliance Statements. The Trustee, the Master
Servicer and the Special Servicer shall, and the Master Servicer or Special
Servicer shall use commercially reasonable efforts (including enforcement as
such term is described in Section 3.22(c)) to cause each Additional Servicer
with which it has entered into a servicing relationship with respect to the
Mortgage Loans to, deliver to the Depositor and the Trustee on or before March
15 of each year, commencing in March 2008, an Officer's Certificate stating, as
to the Certifying Servicer, that (A) a review of such Certifying Servicer's
activities during the preceding calendar year or portion thereof and of such
Certifying Servicer's performance under this Agreement, or the applicable
sub-servicing agreement or primary servicing agreement in the case of an
Additional Servicer, has been made under such officer's supervision and (B) to
the best of such officer's knowledge, based on such review, such Certifying
Servicer has fulfilled all its obligations under this Agreement, or the
applicable sub-servicing agreement or primary servicing agreement in the case of
an Additional Servicer, in all material respects throughout such year or portion
thereof, or, if there has been a failure to fulfill any such obligation in any
material respect, specifying each such failure known to such officer and the
nature and status thereof. Promptly after receipt of each such Officer's
Certificate, the Depositor shall review each such Officer's Certificate and, if
applicable, consult with such Certifying Servicer as to the nature of any
failures by such Certifying Servicer, or any related Additional Servicer with
which such Certifying Servicer has entered into a servicing relationship with
respect to the Mortgage Loans in the fulfillment of any of such Certifying
Servicer's obligations hereunder or under the applicable Sub-Servicing Agreement
or primary servicing agreement. The obligations of each Certifying Servicer
under this Section 11.09 apply to the extent that such Certifying Servicer
serviced a Mortgage Loan during the applicable period, whether or not the Master
Servicer, the Special Servicer or Additional Servicer is acting as a Certifying
Servicer at the time such Officer's Certificate is required to be delivered. No
Certifying Servicer shall be required to cause the delivery of any such
Officer's Certificate until April 15 in any given year so long as it has
received written confirmation from the Depositor that a Report on Form 10-K is
not required to be filed in respect of the Trust for the preceding calendar
year.
Section 11.10 Annual Reports on Assessment of Compliance with
Servicing Criteria.
(a) On or before March 15 of each year, commencing in March 2008,
the Master Servicer, the Special Servicer and the Trustee, each at its own
expense, shall furnish, and each such party shall use commercially reasonable
efforts (including enforcement as such term is described in Section 3.22(c)) to
cause each Servicing Function Participant with which it has entered into a
servicing relationship with respect to the Mortgage Loans to furnish (each, a
"Reporting Servicer"), to the Trustee and the Depositor, a report on an
assessment of compliance with the Relevant Servicing Criteria that contains (A)
a statement by such Reporting Servicer of its responsibility for assessing
compliance with the Relevant Servicing Criteria, (B) a statement that such
Reporting Servicer used the Relevant Servicing Criteria as the basis for such
report, (C) such Reporting Servicer's assessment of compliance with the Relevant
Servicing Criteria as of and for the period ending the end of the fiscal year
covered by the Form 10-K required to be filed pursuant to Section 11.05,
including, if there has been any material instance of noncompliance with the
Relevant Servicing Criteria, a discussion of each such failure and the nature
and status thereof, and (D) a statement that a registered public accounting firm
has issued an attestation report on such Reporting Servicer's assessment of
compliance with the Relevant Servicing Criteria as of and for such period.
Each such report shall be addressed to the Depositor and signed by
an authorized officer of the applicable company, and shall address each of the
Relevant Servicing Criteria specified in Schedule VIII hereto delivered to the
Depositor on the Closing Date. Promptly after receipt of each such report, (i)
the Depositor shall review each such report and, if applicable, consult with
each Reporting Servicer as to the nature of any material instance of
noncompliance with the Servicing Criteria applicable to it, and (ii) the Trustee
shall confirm that the assessments, taken individually address the Relevant
Servicing Criteria and notify the Depositor of any exceptions. No Reporting
Servicer shall be required to cause the delivery of any such assessments until
April 15 in any given year so long as it has received written confirmation from
the Depositor that a Report on Form 10-K is not required to be filed in respect
of the Trust for the preceding calendar year.
(b) On the Closing Date, the Master Servicer, the Special Servicer
and the Trustee shall furnish to the Depositor and the Trustee the Relevant
Servicing Criteria applicable to it, in the form of Schedule VIII hereto
appropriately completed (indicating thereon any Servicing Function Participant
that the Master Servicer, Special Servicer or Trustee has entered into a
servicing relationship).
(c) No later than the end of each fiscal year for the Trust, the
Master Servicer and the Special Servicer shall notify the Trustee and the
Depositor and the other parties to this Agreement as to the name of each
Servicing Function Participant utilized by it, and the Trustee shall notify the
Depositor as to the name of each Servicing Function Participant utilized by it,
and each such notice will specify what specific Servicing Criteria will be
addressed in the report on assessment of compliance prepared by such Servicing
Function Participant. When the Master Servicer, the Special Servicer and the
Trustee submit their assessments pursuant to Section 11.10(a), the Master
Servicer, the Special Servicer and the Trustee, as applicable, will also at such
time use commercially reasonable efforts to include the assessment (and related
attestation pursuant to Section 11.11) of each Servicing Function Participant
engaged by it.
Section 11.11 Annual Independent Public Accountants' Servicing
Report. On or before March 15th of each year, commencing in March 2008, the
Master Servicer, the Special Servicer and the Trustee, each at its own expense,
shall cause, and the Master Servicer, the Special Servicer and the Trustee shall
use commercially reasonable efforts (including enforcement as such term is
described in Section 3.22(c)) to cause each Servicing Function Participant with
which it has entered into a servicing relationship with respect to the Mortgage
Loans to cause, a registered public accounting firm (which may also render other
services to the Master Servicer, the Special Servicer, the Trustee or the
applicable Servicing Function Participant, as the case may be) and that is a
member of the American Institute of Certified Public Accountants to furnish a
report to the Trustee and the Depositor to the effect that (i) it has obtained a
representation regarding certain matters from the management of such Reporting
Servicer, which includes an assertion that such Reporting Servicer has complied
with the Relevant Servicing Criteria in all material respects and (ii) on the
basis of an examination conducted by such firm in accordance with standards for
attestation engagements issued or adopted by the Public Company Accounting
Oversight Board, it is issuing an opinion as to whether such Reporting
Servicer's assessment of compliance with the Relevant Servicing Criteria was
fairly stated in all material respects. In the event that an overall opinion
cannot be expressed, such registered public accounting firm shall state in such
report why it was unable to express such an opinion. Each such related
accountant's attestation report shall be made in accordance with Rules
1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act and the
Exchange Act. Such report must be available for general use and not contain
restricted use language.
Promptly after receipt of such report from the Master Servicer, the
Special Servicer, the Trustee or any Servicing Function Participant, (i) the
Depositor shall review the report and, if applicable, consult with the Master
Servicer, the Special Servicer or the Trustee as to the nature of any defaults
by the Master Servicer, the Special Servicer, the Trustee or any Servicing
Function Participant with which it has entered into a servicing relationship
with respect to the Mortgage Loans, as the case may be, in the fulfillment of
any of the Master Servicer's, the Special Servicer's, the Trustee's, the
Trustee's or the applicable Servicing Function Participants' obligations
hereunder or under the applicable sub-servicing or primary servicing agreement,
and (ii) the Trustee shall confirm that each accountants' attestation report
submitted pursuant to this Section 11.11 relates to an assessment of compliance
meeting the requirements of Section 11.10 and notify the Depositor of any
exceptions.
Section 11.12 Indemnification. Each of the Master Servicer, the
Special Servicer and the Trustee shall indemnify and hold harmless each
Certification Party from and against any claims, losses, damages, penalties,
fines, forfeitures, legal fees and expenses and related costs, judgments and
other costs and expenses incurred by such Certification Party arising out of an
actual breach by the Master Servicer, the Special Servicer or the Trustee, as
the case may be, of its obligations under this Article XI.
The Master Servicer and the Special Servicer shall use commercially
reasonable efforts (including enforcement as such term is described in Section
3.22(c)) to cause each Additional Servicer and each Servicing Function
Participant with which, in each case, it has entered into a servicing
relationship with respect to the Mortgage Loans to indemnify and hold harmless
each Certification Party from and against any and all claims, losses, damages,
penalties, fines, forfeitures, legal fees and expenses and related costs,
judgments and any other costs, fees and expenses incurred by such Certification
Party arising out of:(i) a breach of its obligations to provide any of the
annual compliance statements or annual assessment of compliance reports or
attestation reports pursuant to the applicable sub-servicing or primary
servicing agreement or (ii) any failure by a Servicer (as defined in Section
11.02(b)) to identify a Servicing Function Participant pursuant to Section
11.02(c).
If the indemnification provided for herein is unavailable or
insufficient to hold harmless any Certification Party, then the Master Servicer,
the Special Servicer, the Trustee, any Additional Servicer or other Servicing
Function Participant (the "Performing Party") shall contribute to the amount
paid or payable to the Certification Party as a result of the losses, claims,
damages or liabilities of the Certification Party in such proportion as is
appropriate to reflect the relative fault of the Certification Party on the one
hand and the Performing Party on the other in connection with a breach of the
Performing Party's obligations pursuant to Sections 11.06, 11.09, 11.10 or 11.11
(or breach of its obligations under the applicable sub-servicing or primary
servicing agreement to provide any of the annual compliance statements or annual
servicing criteria compliance reports or attestation reports). The Master
Servicer and Special Servicer shall use commercially reasonable efforts
(including enforcement as such term is described in Section 3.22(c)) to cause
each Additional Servicer or Servicing Function Participant, in each case, with
which it has entered into a servicing relationship with respect to the Mortgage
Loans to agree to the foregoing indemnification and contribution obligations.
This Section 11.12 shall survive the termination of this Agreement or the
earlier resignation or removal of the Master Servicer or the Special Servicer.
Section 11.13 Signatures; Article XI Notices. Each Form 8-K report
and Form 10-D report shall be signed by the Depositor. The Depositor shall
provide its signature to the Trustee by electronic or fax transmission (with
hard copy to follow by overnight mail) no later than the 13th calendar day
following the related Distribution Date for Form 10-D, and not later than noon
on the date of filing for Form 8-K (provided, that in each case the Trustee
shall not file the related form until the Depositor has given its approval
thereof). If a Form 8-K or Form 10-D cannot be filed on time or if a previously
filed Form 8-K or Form 10-D needs to be amended, the Trustee will follow the
procedures set forth in this Article XI.
With respect to any notice required to be delivered by the Trustee
to the Depositor pursuant to Article XI, the Trustee may deliver such notice,
notwithstanding any contrary provision in Section 12.05 via facsimile to (704)
386-1094, via email to xxxxxxx.x.xxxxx@xxxxxxxxxxxxx.xxx or telephonically by
calling Xxxxxxx Xxxxx at (000) 000-0000.
Section 11.14 Amendments. This Article XI (other than with respect
to the reports and certifications set forth in Section 11.09 and Section 11.11)
may be amended by the parties hereto pursuant to Section 12.01 for purposes of
complying with Regulation AB and the Xxxxxxxx-Xxxxx Act and/or to conform to
standards developed within the commercial mortgage-backed securities market
without any Opinions of Counsel, Officer's Certificates, Rating Agency
confirmations or the consent of any Certificateholder, notwithstanding anything
to the contrary contained in this Agreement.
Section 11.15 Non-Serviced Mortgage Loans. With respect to any
Non-Serviced Loan serviced under a Non-Serviced Loan Pooling and Servicing
Agreement, the Reporting Servicer will use commercially reasonable efforts to
procure a Xxxxxxxx-Xxxxx back-up certification from the Non-Serviced Loan Master
Servicer, the Non-Serviced Loan Special Servicer and the Non-Serviced Loan
Trustee in form and substance similar to a Performance Certification.
Section 11.16 Certain Matters Relating to the Future Securitization
of the Pari Passu Companion Loans.
(a) Notwithstanding any other provision herein to the contrary,
including, without limitation, any time deadlines for delivery set forth in this
Article XI, in connection with the requirements contained in this Article XI
that provide for the delivery of information and other items to, and the
cooperation with, the depositor and trustee of any securitization subject to
Regulation AB involving any Companion Loan (a "Regulation AB Companion Loan
Securitization"), no party hereunder shall be obligated to provide any such
items to or cooperate with such depositor or trustee (i) unless it is required
to deliver corresponding information and other items with respect to such
Regulation AB Companion Loan Securitization, (ii) until the depositor or the
trustee of such Regulation AB Companion Loan Securitization has provided each
party hereto with not less than 30 days written notice (which shall only be
required to be delivered once) certifying that such Regulation AB Companion Loan
Securitization is subject to Regulation AB and is subject to Exchange Act
reporting, and (iii) specifying in reasonable detail the information and other
items requested to be delivered; provided that if Exchange Act reporting is
being requested, such depositor or trustee is only required to provide a single
written notice to such effect. Any reasonable cost and expense of the Master
Servicer, Special Servicer and the Trustee in cooperating with such depositor or
trustee of such other securitization trust (above and beyond their expressed
duties hereunder) shall be the responsibility of such depositor or other
securitization trust. The parties hereto shall have the right to confirm in good
faith with the depositor of such Regulation AB Companion Loan Securitization as
to whether Regulation AB requires the delivery of the items identified in this
Article XI to the depositor and trustee of the such Regulation AB Companion Loan
Securitization prior to providing any of the reports or other information
required to be delivered under this Article XI in connection therewith. Upon
such confirmation, the parties shall comply with the time deadlines for delivery
set forth in this Article XI with respect to such Regulation AB Companion Loan
Securitization. The parties hereunder shall also have the right to require that
such depositor provide them with the contact details of the depositor, the
trustee and any other parties to the Non-Serviced Pooling and Servicing
Agreement relating to such Regulation AB Companion Loan Securitization.
(b) Each of the Master Servicer and the Special Servicer shall, upon
reasonable prior written request given in accordance with the terms of Section
11.16(a) (and the Master Servicer and the Special Servicer and the Trustee shall
use commercially reasonable efforts to cause any sub-servicer appointed with
respect to any Companion Loan to permit), permit a holder of any Companion Loan
to use such party's description contained in the Prospectus Supplement
(including the annexes thereto) (updated as appropriate by the Master Servicer
or the Special Servicer, as applicable) for inclusion in the disclosure
materials relating to any securitization of any Companion Loan.
(c) The Master Servicer and the Special Servicer, upon reasonable
prior written request given in accordance with the terms of Section 11.16(a),
shall each timely provide (to the extent the reasonable cost thereof is paid or
caused to be paid by the requesting party) to the depositor and any underwriters
with respect to the securitization of any Companion Loan such opinion(s) of
counsel, certifications and/or indemnification agreement(s) with respect to the
updated description referred in Section 11.16(a) with respect to such party,
substantially identical to those, if any, delivered by the Master Servicer or
the Special Servicer, as the case may be, or their respective counsel, in
connection with the information concerning such party in the Prospectus
Supplement and/or any other disclosure materials relating to this transaction
(updated as deemed appropriate by the Master Servicer or the Special Servicer,
or their respective legal counsel, as the case may be).
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment.
(a) This Agreement may be amended from time to time by the mutual
agreement of the parties hereto, without the consent of any of the
Certificateholders or any holder of the Companion Loan related to a Whole Loan,
(i) to cure any ambiguity, (ii) to correct, modify or supplement any provision
herein that may be defective or may be inconsistent with any other provision
herein, (iii) to add any other provisions with respect to matters or questions
arising hereunder that shall not be inconsistent with the provisions hereof,
(iv) to relax or eliminate any requirement hereunder imposed by the REMIC
Provisions if the REMIC Provisions are amended or clarified such that any such
requirement may be relaxed or eliminated; (v) if such amendment, as evidenced by
an Opinion of Counsel delivered to the Trustee and the REMIC Administrator, is
reasonably necessary to comply with any requirements imposed by the Code or any
successor or amendatory statute or any temporary or final regulation, revenue
ruling, revenue procedure or other written official announcement or
interpretation relating to federal income tax laws or any such proposed action
that, if made effective, would apply retroactively to REMIC I or REMIC II at
least from the effective date of such amendment, or would be necessary to avoid
the occurrence of a prohibited transaction or to reduce the incidence of any tax
that would arise from any actions taken with respect to the operation of REMIC I
or REMIC II; (vi) to modify, add to or eliminate any provisions of Section
5.02(d)(i), (ii) or (iii); or (vii) for any other purpose; provided such
amendment (other than any amendment for the specific purposes described in
clauses (v) and (vi) of this Section 12.01(a) shall not, as evidenced by an
Opinion of Counsel obtained by or delivered to the Trustee, adversely affect in
any material respect the interests of any Certificateholder without such
Certificateholder's written consent; provided, further, such amendment shall not
adversely affect in any material respect the rights and obligations of the
related Mortgage Loan Seller without such Mortgage Loan Seller's written
consent; provided, further, such amendment shall not adversely affect in any
material respect the rights and obligations of the related Companion Loan Holder
related to a Whole Loan without such Companion Loan Holder's written consent;
and provided, further, such amendment (other than any amendment for any of the
specific purposes described in clauses (i) through (vi) of this Section 12.01(a)
shall not result in a downgrade, qualification (if applicable) or withdrawal of
any rating then assigned to any Class of Certificates or Companion Loan
Securities by any Rating Agency (as evidenced by written confirmation to such
effect from each Rating Agency obtained by or delivered to the Trustee).
(b) This Agreement may also be amended from time to time by the
mutual agreement of the parties hereto, with the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights allocated to the
affected Classes, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or of modifying in
any manner the rights of the Holders of Certificates or any holder of the
Companion Loan related to a Whole Loan; provided, however, no such amendment
shall (i) reduce in any manner the amount of, or delay the timing of, payments
received or advanced on the Mortgage Loans and any REO Properties that are
required to be distributed on any Certificate without the written consent of the
Holder of such Certificate, (ii) adversely affect in any material respect the
interests of the Holders of any Class of Certificates in a manner other than as
described in clause (b)(i) of this Section 12.01(b) without the written consent
of the Holders of all Certificates of such Class, (iii) change the definition of
the Servicing Standard, without the written consent of the Holders of all
Certificates outstanding, or (iv) modify the provisions of this Section 12.01
without the written consent of the Holders of all Certificates then outstanding.
Notwithstanding any other provision of this Agreement, for purposes of the
giving or withholding of consents pursuant to this Section 12.01, Certificates
registered in the name of the Depositor, the Master Servicer, the Special
Servicer or any of their respective Affiliates shall be entitled to the same
Voting Rights with respect to matters described above as they would if any other
Person held such Certificates. For purposes of this Section 12.01(b), a Class of
Certificates is an "affected Class" if and only if it would, as the result of
any such amendment, experience any of the effects described in clauses (i), (ii)
and (iii) of this Section 12.01(b).
(c) At the direction of the Holders of Certificates entitled to 100%
of the Voting Rights allocated to the affected Classes, and with the agreement
of all of the parties hereto (none of which shall withhold its agreement unless
its obligations hereunder would be materially increased), this Agreement shall
be amended for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Holders of Certificates, including without limitation,
(i) to cause such Classes to be restructured, (ii) to create in connection with
any restructuring one or more new classes of Certificates, which may include,
without limitation, one or more classes of Certificates entitled to payments of
principal on a priority basis from collections in respect of some or all of the
Mortgage Loans, (iii) to make in connection with any such restructuring one or
more additional REMIC elections with respect to the Trust Fund, (iv) to provide
for the book-entry registration of any such existing or newly created classes of
Certificates, and (v) to provide for any holders of any Classes of
Non-Registered Certificates remaining as such after giving effect to such
amendment to receive or have the right to request to receive any statements,
reports or other information that the holders of the Class D, Class E, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class P,
Class Q and Class S Certificates are entitled to receive or request to receive
under this Agreement. For purposes of this Section 12.01(c), a Class of
Certificates is an "affected Class" if and only if it would, as the result of
any such amendment, experience any of the effects described in clauses (i), (ii)
and (iii) of Section 12.01(b). Any restructuring pursuant to this Section
12.01(c) shall require, at the expense of the requesting holders, the prior
written approval of each Rating Agency and confirmation of the ratings of each
such Class of Certificates (taking into account such restructuring), including
confirmation that such restructuring will not result in the downgrade,
qualification (if applicable) or withdrawal of the ratings then assigned to the
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class O, Class P, Class Q and Class S Certificates.
(d) Notwithstanding any contrary provision of this Agreement,
neither the Trustee nor the REMIC Administrator shall consent to any amendment
to this Agreement unless it shall first have obtained or been furnished with an
Opinion of Counsel to the effect that such amendment or the exercise of any
power granted to any party hereto in accordance with such amendment will not
result in the imposition of a tax on REMIC I or REMIC II pursuant to the REMIC
Provisions or cause REMIC I or REMIC II to fail to qualify as a REMIC at any
time that any Certificates are outstanding or any Grantor Trust to fail to
qualify as a grantor trust at any time that any Certificates are outstanding.
(e) Promptly after the execution of any such amendment, the Trustee
shall furnish a copy of the amendment to each Certificateholder and each
Companion Loan Holder.
(f) It shall not be necessary for the consent of Certificateholders
under this Section 12.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe; provided that such
consents shall be in writing.
(g) The Trustee may but shall not be obligated to enter into any
amendment pursuant to this Section 12.01 that affects its rights, duties and
immunities under this Agreement or otherwise.
(h) The cost of any Opinion of Counsel to be delivered pursuant to
Section 12.01(a) or (d) shall be borne by the Person seeking the related
amendment, except that if the Trustee requests any amendment of this Agreement
in furtherance of the rights and interests of Certificateholders, the cost of
any Opinion of Counsel required in connection therewith pursuant to Section
12.01(a) or (d) shall be payable out of the Distribution Account.
(i) Notwithstanding any contrary provisions of this Agreement, this
Agreement may not be amended in a manner that would adversely affect the
distributions to the Class A-2FL Swap Counterparty or the Class A-2FL
Certificates or the rights of the Class A-2FL Swap Counterparty under the Class
A-2FL Swap Contract or the rights of the holders of the Class A-2FL Certificates
without the consent of the Class A-2FL Swap Counterparty and 100% of the Holders
of the Class A-2FL Certificates.
(j) Notwithstanding any contrary provisions of this Agreement, this
Agreement may not be amended in a manner that would adversely affect the
distributions to the Class A-JFL Swap Counterparty or the Class A-JFL
Certificates or the rights of the Class A-JFL Swap Counterparty under the Class
A-JFL Swap Contract or the rights of the holders of the Class A-JFL Certificates
without the consent of the Class A-JFL Swap Counterparty and 100% of the Holders
of the Class A-JFL Certificates.
Section 12.02 Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Master Servicer at the expense of the Trust on direction by the
Trustee, but only (i) upon direction accompanied by an Opinion of Counsel (the
reasonable cost of which may be paid out of the Distribution Account) to the
effect that such recordation materially and beneficially affects the interests
of the Certificateholders and (ii) upon consent of the Directing
Certificateholder. It is acknowledged that the Trustee has no obligation to
monitor whether such recordation in necessary under this Section 12.02.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
Section 12.03 Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder or holder of
the Companion Loan related to a Whole Loan shall not operate to terminate this
Agreement or the Trust, nor entitle such Certificateholder's or Companion Loan
Holder's legal representatives or heirs to claim an accounting or to take any
action or proceeding in any court for a partition or winding up of the Trust,
nor otherwise affect the rights, obligations and liabilities of the parties
hereto or any of them.
(b) No Certificateholder or holder of the Companion Loan related to
a Whole Loan shall have any right to vote (except as expressly provided for
herein) or in any manner otherwise control the operation and management of the
Trust Fund, or the obligations of the parties hereto, nor shall anything herein
set forth, or contained in the terms of the Certificates, be construed so as to
constitute the Certificateholders and/or any Companion Loan Holder from time to
time as partners or members of an association; nor shall any Certificateholder
or any Companion Loan Holder be under any liability to any third party by reason
of any action taken by the parties to this Agreement pursuant to any provision
hereof.
(c) No Certificateholder or Companion Loan Holder shall have any
right by virtue of any provision of this Agreement to institute any suit, action
or proceeding in equity or at law upon or under or with respect to this
Agreement or any Loan, unless, with respect to any suit, action or proceeding
upon or under or with respect to this Agreement, such Holder or holder of the
Companion Loan related to a Whole Loan previously shall have given to the
Trustee a written notice of default hereunder, and of the continuance thereof,
as hereinbefore provided, and (except in the case of a default by the Trustee)
the Holders of Certificates entitled to at least 25% of the Voting Rights shall
have made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding. It is
understood and intended, and expressly covenanted by each Certificateholder with
every other Certificateholder and the Trustee, that no one or more Holders of
Certificates shall have any right in any manner whatsoever by virtue of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, which priority or
preference is not otherwise provided for herein, or to enforce any right under
this Agreement, except in the manner herein provided and for the equal, ratable
and common benefit of all Certificateholders. For the protection and enforcement
of the provisions of this Section 12.03(c), each and every Certificateholder and
the Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 12.04 Governing Law.
This Agreement and the Certificates shall be construed in accordance
with the internal laws of the State of New York applicable to agreements made
and to be performed in said State, and the obligations, rights and remedies of
the parties hereunder shall be determined in accordance with such laws.
Section 12.05 Notices.
Any communications provided for or permitted hereunder shall be in
writing and, unless otherwise expressly provided herein, shall be deemed to have
been duly given when delivered to:
(i) in the case of Banc of America Commercial Mortgage Inc., 000
Xxxxx Xxxxx Xxxxxx, XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000,
Attention: Xxxxxxx Xxxxx, telecopy number: (000) 000-0000 (with a copy to
Xxxx Xxxxxxx, Esq., Assistant General Counsel, Bank of America
Corporation, Bank of America Corporate Center, 000 Xxxxx Xxxxx Xxxxxx
(30th Floor, NC1-002-29-01, Charlotte, North Carolina 28255), telecopy
number: (000) 000-0000 and with copy to: Xxxxx X. XxXxxx, Esq.,
Cadwalader, Xxxxxxxxxx & Xxxx LLP, 000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000;
(ii) in the case of the Master Servicer, Bank of America, National
Association, Capital Markets Servicing Group, NC1-026-06-01, 000 Xxxx
Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention:
Servicing Manager, telecopy number: (000) 000-0000, Reference: Banc of
America Commercial Mortgage, Inc. Commercial Mortgage Pass-Through
Certificates, Series 2007-2 and with copy to: Xxxxx X. XxXxxx, Esq.,
Cadwalader, Xxxxxxxxxx & Xxxx LLP, 000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000;
(iii) in the case of the Special Servicer, LNR Partners, Inc., 0000
Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxx Xxxxx, Xxxxxxx 00000, Attention:
Xxxxxxxx Xxxxxxx and Xxxxxx X. Xxxxxx III, Esq., telecopy number: (305)
695-5601 and Attention: Xxxxxx Xxxxxxx, telecopy number (000) 000-0000,
and with a copy to Xxxx Xxxxx, Esq., Bilzin Xxxxxxx Xxxxx Price & Xxxxxxx
LLP, 000 X. Xxxxxxxx Xxxx., Xxxxx 0000, Xxxxx, Xxxxxxx 00000, telecopy
number (000) 000-0000;
(iv) in the case of the Trustee and REMIC Administrator, Xxxxx Fargo
Bank, N.A., 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention:
Corporate Trust Services (CMBS), Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-2, telecopy
number: (000) 000-0000;
(v) in the case of the Rating Agencies, (A) Fitch, Inc., Xxx Xxxxx
Xxxxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Commercial
Mortgaged Backed Securities Surveillance, telecopy number (000) 000 0000;
(B) Standard & Poor's Ratings Services, Inc., a division of The
XxXxxx-Xxxx Companies, Inc., 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 10041-0003, Attention: Commercial Mortgage Group Surveillance
Manager, telecopy number (000) 000-0000;
(vi) in the case of the initial Directing Certificateholder,
Hyperion Brookfield Asset Management Inc., Three World Financial Center,
000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention:
Xxxxx Xxxxxxx, telecopy number (000) 000-0000;
(vii) in the case of the initial Beacon Seattle & DC Portfolio
Operating Advisor, Centerline REIT Inc., 0000 X. X'Xxxxxx Xxxx., Xxxxx
000, Xxxxxx, Xxxxx 00000, Attention: Xxxxx Xxxxxxx, facsimile number (972)
868 5490;
(viii) in the case of the initial 000 Xxxxxxxxx Xxxxxx Pari Passu
Note A-1 Holder, LaSalle Bank National Association, as Trustee for the
registered holders of Banc of America Commercial Mortgage Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-2, at 000 Xxxxx XxXxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Global Securities
and Trust Services Group - Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-2, telecopy
number: (000) 000-0000;
(ix) in the case of the initial One Park Avenue Companion Loan
Holder, addressed to Bank of America, National Association, 000 Xxxxx
Xxxxx Xxxxxx, XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, attention of
Xxxxxxx X. Xxxxx, with a copy to Xxxx X. Xxxxxxx, Esq., Assistant General
Counsel, at Bank of America Corporate Center, 000 Xxxxx Xxxxx Xxxxxx, 30th
Floor, NC1-002-29-01, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, and with a copy to
Xxxxx X. XxXxxx, Esq., Cadwalader Xxxxxxxxxx & Xxxx LLP, 000 Xxxx Xxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000;
(x) in the case of the initial Parkway Chevrolet-Tomball Controlling
Holder, Bear Xxxxxxx Commercial Mortgage, Inc. 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: J. Xxxxxxxxxxx Xxxxxxx telecopy number:
(000) 000-0000;
(xi) in the case of the initial holder of the Parkway
Chevrolet-Tomball A/B Companion Loan, Bear Xxxxxxx Commercial Mortgage,
Inc. 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: J.
Xxxxxxxxxxx Xxxxxxx telecopy number: (000) 000-0000;
(xii) in the case of the Class A-2FL Swap Counterparty, addressed to
Bear Xxxxxxx Capital Markets Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Derivatives Middle Office, fax number: (000) 000-0000,
and with a copy to Bear Xxxxxxx Capital Markets Inc., Xxx Xxxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx, Xxx Xxxx 00000, Attention: Derivatives Operations - 7th
Floor, fax number: (000) 000-0000;
(xiii) in the case of the Class A-JFL Swap Counterparty, addressed
to Bear Xxxxxxx Capital Markets Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Derivatives Middle Office, fax number: (212)
272-6825, and with a copy to Bear Xxxxxxx Capital Markets Inc., Xxx
Xxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxx 00000, Attention: Derivatives
Operations - 7th Floor, fax number: (000) 000-0000;
or as to each such Person such other address as may hereafter be
furnished by such Person to the parties hereto in writing. Any communication
required or permitted to be delivered to a Certificateholder shall be deemed to
have been duly given when mailed first class, postage prepaid, to the address of
such Holder as shown in the Certificate Register.
Section 12.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
Section 12.07 Successors and Assigns; Beneficiaries.
(a) The provisions of this Agreement shall be binding upon and inure
to the benefit of the respective successors and assigns of the parties hereto,
and all such provisions shall inure to the benefit of the Certificateholders.
The Companion Loan Holder related to a Whole Loan and any designees thereof
acting on behalf of or exercising the rights of such Companion Loan Holder and,
subject to any limited recourse provisions contained in the Class A-2FL Swap
Contract or the Class A-JFL Swap Contract, the Class A-2FL Swap Counterparty and
the Class A-JFL Swap Counterparty shall be third-party beneficiaries to this
Agreement with respect to their rights as specifically provided for herein and
may directly enforce such rights. Except as specifically contemplated by Section
3.22, Section 3.24, Section 6.03 and Section 8.05, no other person, including,
without limitation, any Mortgagor, shall be entitled to any benefit or equitable
right, remedy or claim under this Agreement.
(b) Each of the Trustee, the Special Servicer and the Master
Servicer acknowledges that each of the Trustee, master servicer and special
servicer of an Other Securitization is an intended third-party beneficiary under
this Agreement, subject to the terms of this Agreement, (i) with respect to
Section 3.05(f) and (ii) any provisions herein relating to (1) the reimbursement
of any nonrecoverable advances made with respect to the related Mortgage Loan by
such Persons, (2) the indemnification of the trustee, master servicer and
special servicer of an Other Securitization pursuant to Section 6.03 against any
claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments and any other costs, liabilities, fees and expenses incurred in
connection with the Non-Serviced Pooling and Servicing Agreement and this
Agreement that relate solely to its servicing of the related Whole Loan and any
related reimbursement provisions and (3) the provisions set forth in Section
4.03(f) regarding advancing coordination.
Section 12.08 Article and Section Headings.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
Section 12.09 Notices to and from Rating Agencies.
(a) The Trustee shall promptly provide notice to each Rating Agency
with respect to each of the following of which it has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default hereunder that has not
been cured;
(iii) the resignation or termination of the Master Servicer, the
Special Servicer or the REMIC Administrator and the appointment of a
successor;
(iv) any change in the location of the Distribution Account, the
REMIC I Distribution Account, the Class A-2FL Floating Rate Account, the
Class A-JFL Floating Rate Account, the REMIC II Distribution Account, the
Excess Interest Distribution Account or the Excess Liquidation Proceeds
Account;
(v) the final payment to any Class of Certificateholders; and
(vi) the repurchase of any Mortgage Loan by a Mortgage Loan Seller
pursuant to Section 2.03.
(b) The Master Servicer shall promptly provide notice to each Rating
Agency with respect to each of the following of which it has actual knowledge:
(i) the resignation or removal of the Trustee and the appointment of
a successor; and
(ii) any change in the location of the Certificate Account.
(c) The Trustee, the Master Servicer and the Special Servicer, as
applicable, shall furnish to each Rating Agency, with respect to each Loan such
information as the Rating Agency shall reasonably request and that the Trustee,
the Master Servicer or the Special Servicer can reasonably provide in accordance
with applicable law and without waiving any attorney-client privilege relating
to such information. The Trustee, the Master Servicer and the Special Servicer,
as applicable, may include any reasonable disclaimer they deem appropriate with
respect to such information.
(d) Each of the Master Servicer and the Special Servicer shall
promptly furnish to each Rating Agency copies of the following:
(i) each of its annual statements as to compliance described in
Section 11.09; and
(ii) each of its annual independent public accountants' servicing
reports described in Section 11.11, if any.
In addition, as and to the extent required by Section 3.12(a) and
(b), each of the Master Servicer and the Special Servicer shall promptly furnish
to each Rating Agency copies or summaries (in such format as will be acceptable
to the Rating Agency) of any of the written reports (including, without
limitation, reports regarding property inspections) prepared, and any of the
quarterly and annual or other periodic operating statements and rent rolls
collected, by it pursuant to Section 3.12(b).
(e) The Trustee shall promptly furnish each Rating Agency on a
monthly basis, to the extent not made available on the Trustee's Website, copies
of the statements to the Holders of the REMIC II Certificates required by the
first paragraph of Section 4.02(a).
(f) To the extent reasonably possible, all information and reports
delivered or made available to the Rating Agencies, any Companion Loan Holder,
any Controlling Holder or a Holder of a Non-Registered Certificate (except a
Class V, Class R-I or Class R-II Certificate) (if requested by such Holder), by
any of the Trustee, the Master Servicer or the Special Servicer pursuant to this
Section 12.09, shall be so delivered or otherwise made available through an
electronic medium.
(g) Each Rating Agency shall provide to the Trustee, upon its
request, a listing of the then current rating on any Certificate then
outstanding.
Section 12.10 Requests for Information; Standing Requests.
(a) Any Holder of a Non-Registered Certificate (except a Class V,
Class R-I or Class R-II Certificate) shall be entitled to, upon request to the
Master Servicer, receive a copy from the Master Servicer, of any notice or
report to be delivered hereunder to the Directing Certificateholder, at the
requesting party's expense.
(b) For the avoidance of doubt, it is noted that to the extent that
any Rating Agency, any Companion Loan Holder, any Controlling Holder, as
applicable, or any Holder of a Non-Registered Certificate (except a Class V,
Class R-I or Class R-II Certificate) is stated herein to be entitled to obtain
from the Master Servicer or the Special Servicer, upon request, any particular
report or other item of information obtained or prepared with respect to the
Loans by the parties to this Agreement in the course of their performance
hereof, such request by such Person may take the form of a standing request to
the Master Servicer or the Special Servicer, as the case may be, to receive all
such reports or items until further notice.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers or representatives thereunto duly
authorized, in each case as of the day and year first above written.
BANC OF AMERICA COMMERCIAL MORTGAGE
INC., as Depositor,
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
BANK OF AMERICA, NATIONAL ASSOCIATION,
as Master Servicer,
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Principal
LNR PARTNERS, INC., as
Special Servicer,
By: /s/ Xxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President
XXXXX FARGO BANK, N.A., as
Trustee and REMIC Administrator,
By: /s/ Xxxx Xxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the 6th day of June 2007, before me, a notary public in and for
said State, personally appeared Xxxx X. Xxxxxx known to me to be a Vice
President of BANC OF AMERICA COMMERCIAL MORTGAGE INC. one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such entity, and acknowledged to me that such person
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxxx X. Xxxxxxx
--------------------------------------
Notary Public
[Notarial Seal]
My commission expires:
February 4, 0000
XXXXX XX XXXXX XXXXXXXX )
) ss.:
COUNTY OF MECKLENBURG )
On the 6th day of June 2007, before me, a notary public in and for
said State, personally appeared Xxxx X. Xxxxxx known to me to be a Principal of
BANK OF AMERICA, NATIONAL ASSOCIATION, one of the entities that executed the
within instrument, and also known to me to be the person who executed it on
behalf of such entity, and acknowledged to me that such person executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxxx X. Xxxxxxx
--------------------------------------
Notary Public
[Notarial Seal]
My commission expires:
February 4, 0000
XXXXX XX XXXXXXX )
) ss.:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this 6th day of June 2006,
by Xxxxxxxx X. Xxxxxxx, as Vice President on behalf of LNR Partners, Inc., a
Florida corporation; such individual is personally known to me or has produced a
driver's license as identification.
/s/ Davika Xxxxxxxx Xxxxx
--------------------------------------
Print Name: Davika Xxxxxxxx Xxxxx
Notary Public, State of Florida
[NOTARIAL SEAL]
My commission expires:
Feb. 19, 0000
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the 6th day of June 2007, before me, a notary public in and for
the State of New York, personally appeared Xxxx Xxxxxxx, known to me to be a
Vice Pres. of XXXXX FARGO BANK, N.A. a national banking association that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such national banking association, and acknowledged to
me that such person executed the within instrument.
/s/ Xxxxx X. Xxxxxx
--------------------------------------
Notary Public
[Notarial Seal]
My commission expires:
Jan. 3, 2009
Exhibit A-1
Form of Class A-1 Certificate
CLASS A-1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-2
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this Certificate
5.4210% per annum as of the Issue Date:
$58,000,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class A-1
June 1, 2007 Certificates as of the Issue Date:
$58,000,000
Cut-off Date: Initial Pool Balance: $3,172,686,517
June 1, 2007
Issue Date:
June 6, 2007
First Distribution Date:
July 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
LNR Partners, Inc.
Certificate No.: A-1-[1] CUSIP No.: [________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1 Certificates referred to in the within mentioned
Agreement.
Dated: June 6, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ____________________________________________________________
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or ________________________________________, as its agent.
Exhibit A-2
Form of Class A-2 Certificate
CLASS A-2 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-2
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this Certificate
Variable as of the Issue Date:
$[500,000,000] $[253,000,000]
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class A-2
June 1, 2007 Certificates as of the Issue Date:
$753,000,000
Cut-off Date: Initial Pool Balance: $3,172,686,517
June 1, 2007
Issue Date:
June 6, 2007
First Distribution Date:
July 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
LNR Partners, Inc.
Certificate No.: A-2-[1] [2] CUSIP No.: [________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Certificates referred to in the within mentioned
Agreement.
Dated: June 6, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ____________________________________________________________
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or ________________________________________, as its agent.
Exhibit A-3
Form of Class A-2FL Certificate
CLASS A-2FL COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-2
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this Certificate
Floating as of the Issue Date:
$55,000,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class A-2FL
June 1, 2007 Certificates as of the Issue Date:
$55,000,000
Cut-off Date: Initial Pool Balance:
June 1, 2007 $3,172,686,517
Issue Date:
June 6, 2007
First Distribution Date:
July 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
LNR Partners, Inc.
Certificate No.: A-2FL-[1] CUSIP No.: [__________](1)
[__________](2)
----------
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A BENEFICIAL
OWNERSHIP OF A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT"
(A "REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D
OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, AND CERTAIN OTHER ASSETS.
EACH BENEFICIAL OWNER OF THIS CERTIFICATE THAT IS OR IS ACTING ON BEHALF OF AN
EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION 3(3) OF ERISA) THAT IS SUBJECT TO
TITLE I OF ERISA, A PLAN (AS DEFINED IN SECTION 4975 OF THE CODE) THAT IS
SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN THAT IS SUBJECT TO ANY FEDERAL,
STATE OR LOCAL LAW THAT IS MATERIALLY SIMILAR TO SECTION 406 OF ERISA OR SECTION
4975 OF THE CODE SHALL BE DEEMED TO REPRESENT THAT THE ACQUISITION AND HOLDING
OF THIS CERTIFICATE ARE ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER AT
LEAST ONE OF PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 00-00, XXXX 00-0,
XXXX 00-00, XXXX 00-00 XX XXXX 96-23 OR A SIMILAR EXEMPTION UNDER APPLICABLE
SIMILAR LAW.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2FL Certificates referred to in the within
mentioned Agreement.
Dated: June 6, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of Definitive Certificates
exchanged or transferred for, or issued in Remaining Principal
exchange for or upon transfer of, an interest Amount of Book Entry Notation
Date in this Book-Entry Certificate Certificate Made By
---- ---------------------------------------------- --------------------- ---------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ____________________________________________________________
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or ________________________________________, as its agent.
Exhibit A-4
Form of Class A-3 Certificate
CLASS A-3 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-2
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this Certificate
Variable as of the Issue Date:
$162,600,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class A-3A
June 1, 2007 Certificates as of the Issue Date:
$162,600,000
Cut-off Date: Initial Pool Balance: $3,172,686,517
June 1, 2007
Issue Date:
June 6, 2007
First Distribution Date:
July 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
LNR Partners, Inc.
Certificate No.: A-3-[1] CUSIP No.: [________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-3 Certificates referred to in the within mentioned
Agreement.
Dated: June 6, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ____________________________________________________________
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or ________________________________________, as its agent.
Exhibit A-5
Form of Class A-AB Certificate
CLASS A-AB COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-2
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this Certificate
Variable as of the Issue Date:
$60,978,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class A-AB
June 1, 2007 Certificates as of the Issue Date:
$60,978,000
Cut-off Date: Initial Pool Balance: $3,172,686,517
June 1, 2007
Issue Date:
June 6, 2007
First Distribution Date:
July 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
LNR Partners, Inc.
Certificate No.: A-AB-[1] CUSIP No.: [________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-4 Certificates referred to in the within mentioned
Agreement.
Dated: June 6, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ____________________________________________________________
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or ________________________________________, as its agent.
Exhibit A-6
Form of Class A-4 Certificate
CLASS A-4 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-2
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this Certificate
Variable as of the Issue Date:
$[500,000,000] $[102,000,000]
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class A-4
June 1, 2007 Certificates as of the Issue Date:
$602,000,000
Cut-off Date: Initial Pool Balance: $3,172,686,517
June 1, 2007
Issue Date:
June 6, 2007
First Distribution Date:
July 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
LNR Partners, Inc.
Certificate No.: A-4-[1] [2] CUSIP No.: [________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-4 Certificates referred to in the within mentioned
Agreement.
Dated: June 6, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ____________________________________________________________
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or ________________________________________, as its agent.
Exhibit A-7
Form of Class A-1A Certificate
CLASS A-1A COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-2
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this Certificate
Variable as of the Issue Date:
$[500,000,000] $[29,302,000]
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class A-1A
June 1, 2007 Certificates as of the Issue Date:
$529,302,000
Cut-off Date: Initial Pool Balance: $3,172,686,517
June 1, 2007
Issue Date:
June 6, 2007
First Distribution Date:
July 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
LNR Partners, Inc.
Certificate No.: A-1A-[1] [2] CUSIP No.: [________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1A Certificates referred to in the within
mentioned Agreement.
Dated: June 6, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ____________________________________________________________
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or ________________________________________, as its agent.
Exhibit A-8
Form of Class XW Certificate
CLASS XW COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-2
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Notional Amount of this Certificate as
Variable of the Issue Date:
$[500,000,000] $[500,000,000]
$[500,000,000] $[500,000,000]
$[500,000,000] $[500,000,000]
$[500,000,000] $[172,686,516]
Date of Pooling and Servicing Agreement: Class Notional Amount of all the Class XW
June 1, 2007 Certificates as of the Issue Date:
$3,172,686,516
Cut-off Date: Initial Pool Balance: $3,172,686,517
June 1, 2007
Issue Date:
June 6, 2007
First Distribution Date:
July 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
LNR Partners, Inc.
Certificate No.: XW-[1] [2] [3] [4] [5] CUSIP No.: [__________]
[6] [7]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND DOES NOT
ENTITLE THE HOLDER HEREOF TO ANY DISTRIBUTIONS OF PRINCIPAL. THE HOLDER HEREOF
WILL BE ENTITLED TO DISTRIBUTIONS OF INTEREST ACCRUED AS PROVIDED IN THE
AGREEMENT REFERRED TO HEREIN ON THE CERTIFICATE NOTIONAL AMOUNT OF THIS
CERTIFICATE, WHICH AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the notional
principal amount of this Certificate (its "Certificate Notional Amount") as of
the Issue Date by the aggregate notional principal balance of all the
Certificates of the same Class as this Certificate (their "Class Notional
Amount") as of the Issue Date) in that certain beneficial ownership interest in
the Trust Fund evidenced by all the Certificates of the same Class as this
Certificate. The Trust Fund was created and the Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Banc of America Commercial Mortgage Inc., as Depositor, and
the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator identified above. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class XW Certificates referred to in the within mentioned
Agreement.
Dated: June 6, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ____________________________________________________________
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or ________________________________________, as its agent.
Exhibit A-9
Form of Class A-M Certificate
CLASS A-M COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-2
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this Certificate
Variable as of the Issue Date:
$317,269,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class A-M
June 1, 2007 Certificates as of the Issue Date:
$317,269,000
Cut-off Date: Initial Pool Balance: $3,172,686,517
June 1, 2007
Issue Date:
June 6, 2007
First Distribution Date:
July 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
LNR Partners, Inc.
Certificate No.: A-M-[1] CUSIP No.: [________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-M Certificates referred to in the within mentioned
Agreement.
Dated: June 6, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ____________________________________________________________
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or ________________________________________, as its agent.
Exhibit A-10
Form of Class A-J Certificate
CLASS A-J COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-2
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this Certificate
Variable as of the Issue Date:
$153,815,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class A-J
June 1, 2007 Certificates as of the Issue Date:
$153,815,000
Cut-off Date: Initial Pool Balance: $3,172,686,517
June 1, 2007
Issue Date:
June 6, 2007
First Distribution Date:
July 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
LNR Partners, Inc.
Certificate No.: A-J-[1] CUSIP No.: [________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-J Certificates referred to in the within mentioned
Agreement.
Dated: June 6, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ____________________________________________________________
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or ________________________________________, as its agent.
Exhibit A-11
Form of Class A-JFL Certificate
CLASS A-JFL COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-2
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this Certificate
Floating as of the Issue Date:
$100,000,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class A-JFL
June 1, 2007 Certificates as of the Issue Date:
$100,000,000
Cut-off Date: Initial Pool Balance:
June 1, 2007 $3,172,686,517
Issue Date:
June 6, 2007
First Distribution Date:
July 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
LNR Partners, Inc.
Certificate No.: A-JFL-[1] CUSIP No.: [__________](1)
[__________](2)
--------------
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A BENEFICIAL
OWNERSHIP OF A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT"
(A "REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D
OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, AND CERTAIN OTHER ASSETS.
EACH BENEFICIAL OWNER OF THIS CERTIFICATE THAT IS OR IS ACTING ON BEHALF OF AN
EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION 3(3) OF ERISA) THAT IS SUBJECT TO
TITLE I OF ERISA, A PLAN (AS DEFINED IN SECTION 4975 OF THE CODE) THAT IS
SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN THAT IS SUBJECT TO ANY FEDERAL,
STATE OR LOCAL LAW THAT IS MATERIALLY SIMILAR TO SECTION 406 OF ERISA OR SECTION
4975 OF THE CODE SHALL BE DEEMED TO REPRESENT THAT THE ACQUISITION AND HOLDING
OF THIS CERTIFICATE ARE ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER AT
LEAST ONE OF PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 00-00, XXXX 00-0,
XXXX 00-00, XXXX 00-00 XX XXXX 96-23 OR A SIMILAR EXEMPTION UNDER APPLICABLE
SIMILAR LAW.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-JFL Certificates referred to in the within
mentioned Agreement.
Dated: June 6, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of Definitive Certificates
exchanged or transferred for, or issued in Remaining Principal
exchange for or upon transfer of, an interest Amount of Book Entry Notation
Date in this Book-Entry Certificate Certificate Made By
---- ---------------------------------------------- --------------------- ---------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ____________________________________________________________
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or ________________________________________, as its agent.
Exhibit A-12
Form of Class B Certificate
CLASS B COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-2
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this Certificate
Variable as of the Issue Date:
$15,863,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class B
June 1, 2007 Certificates as of the Issue Date:
$15,863,000
Cut-off Date: Initial Pool Balance: $3,172,686,517
June 1, 2007
Issue Date:
June 6, 2007
First Distribution Date:
July 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
LNR Partners, Inc.
Certificate No.: B-[1] CUSIP No.: [________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates referred to in the within mentioned
Agreement.
Dated: June 6, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ____________________________________________________________
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or ________________________________________, as its agent.
Exhibit A-13
Form of Class C Certificate
CLASS C COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 2007-2
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this Certificate
Variable as of the Issue Date:
$47,590,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class C
June 1, 2007 Certificates as of the Issue Date:
$47,590,000
Cut-off Date: Initial Pool Balance: $3,172,686,517
June 1, 2007
Issue Date:
June 6, 2007
First Distribution Date:
July 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
LNR Partners, Inc.
Certificate No.: C-[1] CUSIP No.: [________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class C Certificates referred to in the within mentioned
Agreement.
Dated: June 6, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ____________________________________________________________
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or ________________________________________, as its agent.
Exhibit A-14
Form of Class D Certificate
CLASS D COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-2
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this Certificate
Variable as of the Issue Date:
$31,727,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class D
June 1, 2007 Certificates as of the Issue Date:
$31,727,000
Cut-off Date: Initial Pool Balance: $3,172,686,517
June 1, 2007
Issue Date:
June 6, 2007
First Distribution Date:
July 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
LNR Partners, Inc.
Certificate No.: D-[1] CUSIP No.: [__________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class D Certificates referred to in the within mentioned
Agreement.
Dated: June 6, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of Definitive Certificates
exchanged or transferred for, or issued in Remaining Principal
exchange for or upon transfer of, an interest Amount of Book Entry Notation
Date in this Book-Entry Certificate Certificate Made By
---- ---------------------------------------------- --------------------- ---------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ____________________________________________________________
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or ________________________________________, as its agent.
Exhibit A-15
Form of Class E Certificate
CLASS E COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-2
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this Certificate
Variable as of the Issue Date:
$15,864,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class E
June 1, 2007 Certificates as of the Issue Date:
$15,864,000
Cut-off Date: Initial Pool Balance: $3,172,686,517
June 1, 2007
Issue Date:
June 6, 2007
First Distribution Date:
July 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
LNR Partners, Inc.
Certificate No.: E-[1] CUSIP No.: [__________](1)
[__________](2)
--------------
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class E Certificates referred to in the within mentioned
Agreement.
Dated: June 6, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of Definitive Certificates
exchanged or transferred for, or issued in Remaining Principal
exchange for or upon transfer of, an interest Amount of Book Entry Notation
Date in this Book-Entry Certificate Certificate Made By
---- ---------------------------------------------- --------------------- ---------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ____________________________________________________________
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or ________________________________________, as its agent.
Exhibit A-16
Form of Class F Certificate
CLASS F COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-2
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this Certificate
Variable as of the Issue Date:
$27,761,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class F
June 1, 2007 Certificates as of the Issue Date:
$27,761,000
Cut-off Date: Initial Pool Balance: $3,172,686,517
June 1, 2007
Issue Date:
June 6, 2007
First Distribution Date:
July 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
LNR Partners, Inc.
Certificate No.: F-[1] CUSIP No.: [__________](1)
[__________](2)
--------------
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class F Certificates referred to in the within mentioned
Agreement.
Dated: June 6, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of Definitive Certificates
exchanged or transferred for, or issued in Remaining Principal
exchange for or upon transfer of, an interest Amount of Book Entry Notation
Date in this Book-Entry Certificate Certificate Made By
---- ---------------------------------------------- --------------------- ---------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ____________________________________________________________
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or ________________________________________, as its agent.
Exhibit A-17
Form of Class G Certificate
CLASS G COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-2
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this Certificate
Variable as of the Issue Date:
$27,761,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class G
June 1, 2007 Certificates as of the Issue Date:
$27,761,000
Cut-off Date: Initial Pool Balance: $3,172,686,517
June 1, 2007
Issue Date:
June 6, 2007
First Distribution Date:
July 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
LNR Partners, Inc.
Certificate No.: G-[1] CUSIP No.: [__________](1)
[__________](2)
--------------
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class G Certificates referred to in the within mentioned
Agreement.
Dated: June 6, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of Definitive Certificates
exchanged or transferred for, or issued in Remaining Principal
exchange for or upon transfer of, an interest Amount of Book Entry Notation
Date in this Book-Entry Certificate Certificate Made By
---- ---------------------------------------------- --------------------- ---------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ____________________________________________________________
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or ________________________________________, as its agent.
Exhibit A-18
Form of Class H Certificate
CLASS H COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-2
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this Certificate
Variable as of the Issue Date:
$43,624,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class H
June 1, 2007 Certificates as of the Issue Date:
$43,624,000
Cut-off Date: Initial Pool Balance: $3,172,686,517
June 1, 2007
Issue Date:
June 6, 2007
First Distribution Date:
July 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
LNR Partners, Inc.
Certificate No.: H-[1] CUSIP No.: [__________](1)
[__________](2)
--------------
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class H Certificates referred to in the within mentioned
Agreement.
Dated: June 6, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of Definitive Certificates
exchanged or transferred for, or issued in Remaining Principal
exchange for or upon transfer of, an interest Amount of Book Entry Notation
Date in this Book-Entry Certificate Certificate Made By
---- ---------------------------------------------- --------------------- ---------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ____________________________________________________________
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or ________________________________________, as its agent.
Exhibit A-19
Form of Class J Certificate
CLASS J COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-2
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this Certificate
Variable as of the Issue Date:
$35,693,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class J
June 1, 2007 Certificates as of the Issue Date:
$35,693,000
Cut-off Date: Initial Pool Balance: $3,172,686,517
June 1, 2007
Issue Date:
June 6, 2007
First Distribution Date:
July 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
LNR Partners, Inc.
Certificate No.: J-[1] CUSIP No.: [__________](1)
[__________](2)
--------------
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class J Certificates referred to in the within mentioned
Agreement.
Dated: June 6, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of Definitive Certificates
exchanged or transferred for, or issued in Remaining Principal
exchange for or upon transfer of, an interest Amount of Book Entry Notation
Date in this Book-Entry Certificate Certificate Made By
---- ---------------------------------------------- --------------------- ---------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ____________________________________________________________
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or ________________________________________, as its agent.
Exhibit A-20
Form of Class K Certificate
CLASS K COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-2
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this Certificate
Variable as of the Issue Date:
$35,693,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class K
June 1, 2007 Certificates as of the Issue Date:
$35,693,000
Cut-off Date: Initial Pool Balance: $3,172,686,517
June 1, 2007
Issue Date:
June 6, 2007
First Distribution Date:
July 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
LNR Partners, Inc.
Certificate No.: K-[1] CUSIP No.: [__________](1)
[__________](2)
--------------
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class K Certificates referred to in the within mentioned
Agreement.
Dated: June 6, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of Definitive Certificates
exchanged or transferred for, or issued in Remaining Principal
exchange for or upon transfer of, an interest Amount of Book Entry Notation
Date in this Book-Entry Certificate Certificate Made By
---- ---------------------------------------------- --------------------- ---------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ____________________________________________________________
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or ________________________________________, as its agent.
Exhibit A-21
Form of Class L Certificate
CLASS L COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-2
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this Certificate
Variable as of the Issue Date:
$15,863,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class L
June 1, 2007 Certificates as of the Issue Date:
$15,863,000
Cut-off Date: Initial Pool Balance: $3,172,686,517
June 1, 2007
Issue Date:
June 6, 2007
First Distribution Date:
July 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
LNR Partners, Inc.
Certificate No.: L-[1] CUSIP No.: [__________](1)
[__________](2)
--------------
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT
TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"),
OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II)
A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN
ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN
THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION
ss. 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUCH
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE
DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES
UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A
CERTIFICATE THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT
IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class L Certificates referred to in the within mentioned
Agreement.
Dated: June 6, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of Definitive Certificates
exchanged or transferred for, or issued in Remaining Principal
exchange for or upon transfer of, an interest Amount of Book Entry Notation
Date in this Book-Entry Certificate Certificate Made By
---- ---------------------------------------------- --------------------- ---------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ____________________________________________________________
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or ________________________________________, as its agent.
Exhibit A-22
Form of Class M Certificate
CLASS M COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-2
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this Certificate
Variable as of the Issue Date:
$7,932,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class M
June 1, 2007 Certificates as of the Issue Date:
$7,932,000
Cut-off Date: Initial Pool Balance: $3,172,686,517
June 1, 2007
Issue Date:
June 6, 2007
First Distribution Date:
July 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
LNR Partners, Inc.
Certificate No.: M-[1] CUSIP No.: [__________](1)
[__________](2)
--------------
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT
TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"),
OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II)
A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN
ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN
THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION
ss. 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUCH
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE
DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES
UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A
CERTIFICATE THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT
IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class M Certificates referred to in the within mentioned
Agreement.
Dated: June 6, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of Definitive Certificates
exchanged or transferred for, or issued in Remaining Principal
exchange for or upon transfer of, an interest Amount of Book Entry Notation
Date in this Book-Entry Certificate Certificate Made By
---- ---------------------------------------------- --------------------- ---------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ____________________________________________________________
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or ________________________________________, as its agent.
Exhibit A-23
Form of Class N Certificate
CLASS N COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-2
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this Certificate
Variable as of the Issue Date:
$15,863,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class N
June 1, 2007 Certificates as of the Issue Date:
$15,863,000
Cut-off Date: Initial Pool Balance: $3,172,686,517
June 1, 2007
Issue Date:
June 6, 2007
First Distribution Date:
July 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
LNR Partners, Inc.
Certificate No.: N-[1] CUSIP No.: [__________](1)
[__________](2)
--------------
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT
TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"),
OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II)
A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN
ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN
THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION
ss. 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUCH
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE
DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES
UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A
CERTIFICATE THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT
IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer, and the Trustee, the REMIC Administrator identified above. To the
extent not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, and the Trustee, the
REMIC Administrator, the Certificate Registrar and any agents of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Certificate
Registrar or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class N Certificates referred to in the within mentioned
Agreement.
Dated: June 6, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of Definitive Certificates
exchanged or transferred for, or issued in Remaining Principal
exchange for or upon transfer of, an interest Amount of Book Entry Notation
Date in this Book-Entry Certificate Certificate Made By
---- ---------------------------------------------- --------------------- ---------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ____________________________________________________________
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or ________________________________________, as its agent.
Exhibit A-24
Form of Class O Certificate
CLASS O COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-2
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this Certificate
Variable as of the Issue Date:
$3,966,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class O
June 1, 2007 Certificates as of the Issue Date:
$3,966,000
Cut-off Date: Initial Pool Balance: $3,172,686,517
June 1, 2007
Issue Date:
June 6, 2007
First Distribution Date:
July 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
LNR Partners, Inc.
Certificate No.: O-[1] CUSIP No.: [__________](1)
[__________](2)
--------------
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT
TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"),
OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II)
A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN
ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN
THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION
ss. 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUCH
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE
DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES
UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A
CERTIFICATE THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT
IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class O Certificates referred to in the within mentioned
Agreement.
Dated: June 6, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of Definitive Certificates
exchanged or transferred for, or issued in Remaining Principal
exchange for or upon transfer of, an interest Amount of Book Entry Notation
Date in this Book-Entry Certificate Certificate Made By
---- ---------------------------------------------- --------------------- ---------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ____________________________________________________________
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or ________________________________________, as its agent.
Exhibit A-25
Form of Class P Certificate
CLASS P COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-2
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this Certificate
Variable as of the Issue Date:
$3,966,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class P
June 1, 2007 Certificates as of the Issue Date:
$3,966,000
Cut-off Date: Initial Pool Balance: $3,172,686,517
June 1, 2007
Issue Date:
June 6, 2007
First Distribution Date:
July 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
LNR Partners, Inc.
Certificate No.: P-[1] CUSIP No.: [__________](1)
[__________](2)
--------------
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT
TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"),
OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II)
A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN
ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN
THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION
ss. 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUCH
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE
DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES
UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A
CERTIFICATE THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT
IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class P Certificates referred to in the within mentioned
Agreement.
Dated: June 6, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of Definitive Certificates
exchanged or transferred for, or issued in Remaining Principal
exchange for or upon transfer of, an interest Amount of Book Entry Notation
Date in this Book-Entry Certificate Certificate Made By
---- ---------------------------------------------- --------------------- ---------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ____________________________________________________________
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or ________________________________________, as its agent.
Exhibit A-26
Form of Class Q Certificate
CLASS Q COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-2
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this Certificate
Variable as of the Issue Date:
$11,897,000
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class Q
June 1, 2007 Certificates as of the Issue Date:
$11,897,000
Cut-off Date: Initial Pool Balance: $3,172,686,517
June 1, 2007
Issue Date:
June 6, 2007
First Distribution Date:
July 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
LNR Partners, Inc.
Certificate No.: Q-[1] CUSIP No.: [__________](1)
[__________](2)
--------------
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT
TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"),
OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II)
A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN
ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN
THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION
ss. 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUCH
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE
DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES
UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A
CERTIFICATE THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT
IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class Q Certificates referred to in the within mentioned
Agreement.
Dated: June 6, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of Definitive Certificates
exchanged or transferred for, or issued in Remaining Principal
exchange for or upon transfer of, an interest Amount of Book Entry Notation
Date in this Book-Entry Certificate Certificate Made By
---- ---------------------------------------------- --------------------- ---------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ____________________________________________________________
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or ________________________________________, as its agent.
Exhibit A-27
Form of Class S Certificate
CLASS S COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-2
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this Certificate
Variable as of the Issue Date:
$39,659,516
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class S
June 1, 2007 Certificates as of the Issue Date:
$39,659,516
Cut-off Date: Initial Pool Balance: $3,172,686,517
June 1, 2007
Issue Date:
June 6, 2007
First Distribution Date:
July 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
LNR Partners, Inc.
Certificate No.: S-[1] CUSIP No.: [__________](1)
[__________](2)
--------------
(1) For Rule 144A Book-Entry Certificates only.
(2) For Reg S Book-Entry Certificates only.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT
TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"),
OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II)
A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN
ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN
THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION
ss. 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUCH
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE
NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY
SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE
DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES
UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO
THOSE SET FORTH IN THE AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A
CERTIFICATE THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT
IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the principal
balance of this Certificate (its "Certificate Principal Balance") as of the
Issue Date by the aggregate principal balance of all the Certificates of the
same Class as this Certificate (their "Class Principal Balance") as of the Issue
Date) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate) will be made after due notice by the Trustee of the pendency of
such distribution and only upon presentation and surrender of this Certificate
at the offices of the Certificate Registrar appointed as provided in the
Agreement or such other location as may be specified in such notice. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appeared in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
For so long as this Certificate is registered in the name of Cede & Co., or
in such other name as is requested by an authorized representative of DTC,
transfers of interests in this Certificate shall be made through the book entry
facilities of DTC.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class S Certificates referred to in the within mentioned
Agreement.
Dated: June 6, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of Definitive Certificates
exchanged or transferred for, or issued in Remaining Principal
exchange for or upon transfer of, an interest Amount of Book Entry Notation
Date in this Book-Entry Certificate Certificate Made By
---- ---------------------------------------------- --------------------- ---------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ____________________________________________________________
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or ________________________________________, as its agent.
Exhibit A-28
Form of Class V Certificate
CLASS V COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-2
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Date of Pooling and Servicing Agreement: Percentage Interest evidenced by this Certificate in
June 1, 2007 the related Class:
[100]%
Cut-off Date: Initial Pool Balance:
June 1, 2007
$3,172,686,517
Issue Date:
June 6, 2007
First Distribution Date:
July 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
LNR Partners, Inc.
Certificate No.: V-[1]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED AN INVESTMENT REPRESENTATION LETTER FROM THE
PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND SUBSTANCE
SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE EFFECT THAT
SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL,
STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO
THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON
ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE
ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss.
2510.3-101).
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND DOES NOT
ENTITLE THE HOLDER HEREOF TO ANY DISTRIBUTIONS OF PRINCIPAL. THE HOLDER HEREOF
WILL BE ENTITLED TO DISTRIBUTIONS OF EXCESS INTEREST RECEIVED ON THE MORTGAGE
POOL AS PROVIDED IN THE AGREEMENT.
This certifies that [____________________] is the registered owner of the
Percentage Interest evidenced by this Certificate (as specified above) in that
certain beneficial ownership interest in the Trust Fund evidenced by all the
Certificates of the same Class as this Certificate. The Trust Fund was created
and the Certificates were issued pursuant to a Pooling and Servicing Agreement,
dated as specified above (the "Agreement"), among Banc of America Commercial
Mortgage Inc., as Depositor, and the Master Servicer, the Special Servicer and
the Trustee and REMIC Administrator identified above. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed pursuant to the Agreement
on the applicable Distribution Date in respect of the Class of Certificates to
which this Certificate belongs. All distributions made under the Agreement in
respect of this Certificate will be made by the Trustee by wire transfer in
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of such Certificateholder appearing in the Certificate
Register. Notwithstanding the above, the final distribution in respect of this
Certificate will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar appointed as provided in the Agreement or
such other location as may be specified in such notice.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, the Distribution Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the REMIC Administrator with the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights allocated to the
affected Classes. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain circumstances, including any amendment necessary to maintain the status
of REMIC I or REMIC II as a REMIC, without the consent of the Holders of any of
the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class V Certificates referred to in the within mentioned
Agreement.
Dated: June 6, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of Definitive Certificates
exchanged or transferred for, or issued in Remaining Principal
exchange for or upon transfer of, an interest Amount of Book Entry Notation
Date in this Book-Entry Certificate Certificate Made By
---- ---------------------------------------------- --------------------- ---------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ____________________________________________________________
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or ________________________________________, as its agent.
Exhibit A-29
Form of Class R-I Certificate
CLASS R-I COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-2
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Date of Pooling and Servicing Agreement: Percentage Interest evidenced by this Certificate
June 1, 2007 in the related Class:
100%
Cut-off Date: Initial Pool Balance: $3,172,686,517
June 1, 2007
Issue Date:
June 6, 2007
First Distribution Date:
July 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
LNR Partners, Inc.
Certificate No.: R-I-[1]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY GOVERNMENTAL
PLAN, AS DEFINED IN SECTION 3(32) OF ERISA, SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN"), OR ANY PERSON ACTING ON BEHALF OF OR
INVESTING THE ASSETS OF A PLAN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE EVIDENCES THE "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, THE TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL
TAX RELATED TRANSFER RESTRICTIONS AS SET FORTH IN SECTION 5.02 OF THE AGREEMENT.
EACH TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE
ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY. IF
ANY PERSON BECOMES THE REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF
SUCH TRANSFER RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL
FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A
CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER OR UNDER THE AGREEMENT REFERRED TO
HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
This certifies that Bank of America, National Association is the registered
owner of the Percentage Interest evidenced by this Certificate (as specified
above) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing upon the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of the Person entitled thereto, as such name and address
appear in the Certificate Register. Notwithstanding the above, the final
distribution in respect of this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, Distribution Account and, if established, the REO Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized the Trustee under clause (ii) of such Section 5.02(d) to
deliver payments to a Person other than such Person and to have irrevocably
authorized the Trustee under clause (ii) of such Section 5.02(d) to negotiate
the terms of any mandatory disposition and to execute all instruments of
transfer and to do all other things necessary in connection with any such
disposition. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and shall promptly notify the Master
Servicer and the Trustee and REMIC Administrator of any change or impending
change in its status as a Permitted Transferee. In connection with any proposed
transfer of any Ownership Interest in this Certificate, the Certificate
Registrar shall require delivery to it, and shall not register the transfer of
this Certificate until its receipt of, an affidavit and agreement substantially
in the form attached as Exhibit C-1 to the Agreement (a "Transfer Affidavit and
Agreement") from the proposed Transferee, in form and substance satisfactory to
the Certificate Registrar, representing and warranting, among other things, that
such Transferee is a Permitted Transferee, that it is not acquiring its
Ownership Interest in this Certificate as a nominee, trustee or agent for any
Person that is not a Permitted Transferee, that for so long as it retains its
Ownership Interest in this Certificate, it will endeavor to remain a Permitted
Transferee, and that it has reviewed the provisions of Section 5.02(d) of the
Agreement and agrees to be bound by them. Notwithstanding the delivery of a
Transfer Affidavit and Agreement by a proposed Transferee, if the Certificate
Registrar has actual knowledge that the proposed Transferee is not a Permitted
Transferee, the Certificate Registrar shall not register the Transfer of an
Ownership Interest in this Certificate to such proposed Transferee.
Each Person holding or acquiring any Ownership Interest in this Certificate
shall agree (x) to require a Transfer Affidavit and Agreement from any other
Person to whom such Person attempts to transfer its Ownership Interest herein
and (y) not to transfer its Ownership Interest herein unless it provides to the
Certificate Registrar a certificate substantially in the form attached as
Exhibit C-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee.
"Permitted Transferee": means any Transferee of this Certificate other than
any of a Plan or a Person acting on behalf of or using the assets of a Plan, a
Disqualified Organization, a Disqualified Non-U.S. Person, an entity treated as
a U.S. partnership for federal income tax purposes if any of its direct or
indirect partners (other than through a U.S. corporation) is (or is permitted to
be under the related partnership agreement) a Disqualified Non-U.S. Person or a
U.S. Person with respect to whom income on a Residual Certificate is
attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of such Person or any other U.S.
Person or any nominee, agent or middleman of any of the above.
"Disqualified Non-U.S. Persons": means any Non-U.S. Person or agent
thereof other than (i) a Non-U.S. Person that holds this Certificate in
connection with the conduct of a trade or business within the United States and
has furnished the transferor and the Certificate Registrar with an effective IRS
Form W-8ECI (or successor form) or (ii) a Non-U.S. Person that has delivered to
both the transferor and the Certificate Registrar an opinion of a nationally
recognized tax counsel to the effect that the transfer of this Certificate to it
is in accordance with the requirements of the Code and the regulations
promulgated thereunder and that such transfer of this Certificate will not be
disregarded for federal income tax purposes.
"Disqualified Organization": means any of: (i) the United States or a
possession thereof, any State or any political subdivision thereof, or any
agency or instrumentality of any of the foregoing (other than an instrumentality
that is a corporation if all of its activities are subject to tax and, except
for Xxxxxxx Mac, a majority of its board of directors is not selected by any
such governmental unit), (ii) a foreign government, international organization,
or any agency or instrumentality of either of the foregoing, (iii) any
organization (except certain farmers' cooperatives described in Section 521 of
the Code) that is exempt from the tax imposed by Chapter 1 of the Code (unless
such organization is subject to the tax imposed by Section 511 of the Code on
unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381 of the Code or (v) any other Person so
designated by the REMIC Administrator based upon an Opinion of Counsel (provided
to the Trustee by such Person at its expense) that the holding of an Ownership
Interest in a Residual Certificate by such Person may cause the Trust or any
Person having an Ownership Interest in any Class of Certificates, other than
such Person, to incur a liability for any federal tax imposed under the Code
that would not otherwise be imposed but for the Transfer of an Ownership
Interest in a Residual Certificate to such Person. The terms "United States",
"State" and "international organization" shall have the meanings set forth in
Section 7701 of the Code or successor provisions.
"Non-U.S. Person": means any person other than a U.S. Person. "U.S.
Person": means a citizen or resident of the United States, a corporation or
partnership (except to the extent provided in the applicable Treasury
regulations) created or organized in, or under the laws of, the United States
any State thereof or the District of Columbia, including an entity treated as a
corporation or partnership for federal income tax purposes, or an estate whose
income is subject to United States federal income tax regardless of its source,
or a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more such U.S.
Persons have the authority to control all substantial decisions of the trust
(or, to the extent provided in applicable Treasury regulations, certain trusts
in existence on August 20, 1996 that are eligible to elect to be treated as U.S.
Persons).
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-I Certificates referred to in the within mentioned
Agreement.
Dated: June 6, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of Definitive Certificates
exchanged or transferred for, or issued in Remaining Principal
exchange for or upon transfer of, an interest Amount of Book Entry Notation
Date in this Book-Entry Certificate Certificate Made By
---- ---------------------------------------------- --------------------- ---------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ____________________________________________________________
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or ________________________________________, as its agent.
Exhibit A-30
Form of Class R-II Certificate
CLASS R-II COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-2
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Date of Pooling and Servicing Agreement: Percentage Interest evidenced by this Certificate
June 1, 2007 in the related Class:
100%
Cut-off Date: Initial Pool Balance: $3,172,686,517
June 1, 2007
Issue Date:
June 6, 2007
First Distribution Date:
July 10, 2007
Initial Master Servicer: Initial Trustee and REMIC Administrator:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer:
LNR Partners, Inc.
Certificate No.: R-II-[1]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, REMIC ADMINISTRATOR OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT REFERRED TO HEREIN.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM
THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY
THE TRANSFEROR TO THE TRUSTEE OF AN INVESTMENT REPRESENTATION LETTER.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY GOVERNMENTAL
PLAN, AS DEFINED IN SECTION 3(32) OF ERISA, SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN"), OR ANY PERSON ACTING ON BEHALF OF OR
INVESTING THE ASSETS OF A PLAN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE EVIDENCES THE "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, THE TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL
TAX RELATED TRANSFER RESTRICTIONS AS SET FORTH IN SECTION 5.02 OF THE AGREEMENT.
EACH TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE
ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY. IF
ANY PERSON BECOMES THE REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF
SUCH TRANSFER RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL
FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A
CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER OR UNDER THE AGREEMENT REFERRED TO
HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
This certifies that Bank of America, National Association is the registered
owner of the Percentage Interest evidenced by this Certificate (as specified
above) in that certain beneficial ownership interest in the Trust Fund evidenced
by all the Certificates of the same Class as this Certificate. The Trust Fund
was created and the Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Banc of America
Commercial Mortgage Inc., as Depositor, and the Master Servicer, the Special
Servicer and the Trustee and REMIC Administrator identified above. To the extent
not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
10th day of each month or, if such 10th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing upon the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed pursuant to the
Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to the Record Date for
such distribution (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions as well), or otherwise by check
mailed to the address of the Person entitled thereto, as such name and address
appear in the Certificate Register. Notwithstanding the above, the final
distribution in respect of this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar
appointed as provided in the Agreement or such other location as may be
specified in such notice.
The Certificates are limited in right of distribution to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from the
Certificate Account, Distribution Account and, if established, the REO Account
may be made from time to time for purposes other than, and, in certain cases,
prior to, distributions to Certificateholders, such purposes including the
reimbursement of advances made, or certain expenses incurred, with respect to
the Mortgage Loans and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without coupons
in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized the Trustee under clause (ii) of such Section 5.02(d) to
deliver payments to a Person other than such Person and to have irrevocably
authorized the Trustee under clause (ii) of such Section 5.02(d) to negotiate
the terms of any mandatory disposition and to execute all instruments of
transfer and to do all other things necessary in connection with any such
disposition. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and shall promptly notify the Master
Servicer and the Trustee and REMIC Administrator of any change or impending
change in its status as a Permitted Transferee. In connection with any proposed
transfer of any Ownership Interest in this Certificate, the Certificate
Registrar shall require delivery to it, and shall not register the transfer of
this Certificate until its receipt of, an affidavit and agreement substantially
in the form attached as Exhibit C-1 to the Agreement (a "Transfer Affidavit and
Agreement") from the proposed Transferee, in form and substance satisfactory to
the Certificate Registrar, representing and warranting, among other things, that
such Transferee is a Permitted Transferee, that it is not acquiring its
Ownership Interest in this Certificate as a nominee, trustee or agent for any
Person that is not a Permitted Transferee, that for so long as it retains its
Ownership Interest in this Certificate, it will endeavor to remain a Permitted
Transferee, and that it has reviewed the provisions of Section 5.02(d) of the
Agreement and agrees to be bound by them. Notwithstanding the delivery of a
Transfer Affidavit and Agreement by a proposed Transferee, if the Certificate
Registrar has actual knowledge that the proposed Transferee is not a Permitted
Transferee, the Certificate Registrar shall not register the Transfer of an
Ownership Interest in this Certificate to such proposed Transferee.
Each Person holding or acquiring any Ownership Interest in this Certificate
shall agree (x) to require a Transfer Affidavit and Agreement from any other
Person to whom such Person attempts to transfer its Ownership Interest herein
and (y) not to transfer its Ownership Interest herein unless it provides to the
Certificate Registrar a certificate substantially in the form attached as
Exhibit C-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee.
"Permitted Transferee": means any Transferee of this Certificate other than
any of a Plan or a Person acting on behalf of or using the assets of a Plan, a
Disqualified Organization, a Disqualified Non-U.S. Person, an entity treated as
a U.S. partnership for federal income tax purposes if any of its direct or
indirect partners (other than through a U.S. corporation) is (or is permitted to
be under the related partnership agreement) a Disqualified Non-U.S. Person or a
U.S. Person with respect to whom income on a Residual Certificate is
attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of such Person or any other U.S.
Person or any nominee, agent or middleman of any of the above.
"Disqualified Non-U.S. Persons": means any Non-U.S. Person or agent thereof
other than (i) a Non-U.S. Person that holds this Certificate in connection with
the conduct of a trade or business within the United States and has furnished
the transferor and the Certificate Registrar with an effective IRS Form W-8ECI
(or successor form) or (ii) a Non-U.S. Person that has delivered to both the
transferor and the Certificate Registrar an opinion of a nationally recognized
tax counsel to the effect that the transfer of this Certificate to it is in
accordance with the requirements of the Code and the regulations promulgated
thereunder and that such transfer of this Certificate will not be disregarded
for federal income tax purposes.
"Disqualified Organization": means any of: (i) the United States or a
possession thereof, any State or any political subdivision thereof, or any
agency or instrumentality of any of the foregoing (other than an instrumentality
that is a corporation if all of its activities are subject to tax and, except
for Xxxxxxx Mac, a majority of its board of directors is not selected by any
such governmental unit), (ii) a foreign government, international organization,
or any agency or instrumentality of either of the foregoing, (iii) any
organization (except certain farmers' cooperatives described in Section 521 of
the Code) that is exempt from the tax imposed by Chapter 1 of the Code (unless
such organization is subject to the tax imposed by Section 511 of the Code on
unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381 of the Code or (v) any other Person so
designated by the REMIC Administrator based upon an Opinion of Counsel (provided
to the Trustee by such Person at its expense) that the holding of an Ownership
Interest in a Residual Certificate by such Person may cause the Trust or any
Person having an Ownership Interest in any Class of Certificates, other than
such Person, to incur a liability for any federal tax imposed under the Code
that would not otherwise be imposed but for the Transfer of an Ownership
Interest in a Residual Certificate to such Person. The terms "United States",
"State" and "international organization" shall have the meanings set forth in
Section 7701 of the Code or successor provisions.
"Non-U.S. Person": means any person other than a U.S. Person. "U.S. Person":
means a citizen or resident of the United States, a corporation or partnership
(except to the extent provided in the applicable Treasury regulations) created
or organized in, or under the laws of, the United States any State thereof or
the District of Columbia, including an entity treated as a corporation or
partnership for federal income tax purposes, or an estate whose income is
subject to United States federal income tax regardless of its source, or a trust
if a court within the United States is able to exercise primary supervision over
the administration of the trust and one or more such U.S. Persons have the
authority to control all substantial decisions of the trust (or, to the extent
provided in applicable Treasury regulations, certain trusts in existence on
August 20, 1996 that are eligible to elect to be treated as U.S. Persons).
No service charge will be imposed for any registration of transfer or
exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Prior to due presentment of this Certificate for registration of transfer,
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator, the Certificate Registrar and any agents of any of them may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the REMIC Administrator, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the purchase by
the Majority Certificateholder of the Controlling Class (other than the
Depositor or any Mortgage Loan Seller), the Master Servicer or the Special
Servicer (in that order of priority) of all Mortgage Loans and each REO Property
remaining in REMIC I at a price determined as provided in the Agreement, and
(ii) the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in REMIC I. The
Agreement permits, but does not require, any such Majority Certificateholder,
the Master Servicer or the Special Servicer to purchase from the Trust Fund all
Mortgage Loans and any REO Properties remaining therein. The exercise of such
right will effect early retirement of the Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the Initial Pool Balance
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and REMIC
Administrator thereunder and the rights of the Certificateholders thereunder, at
any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee and REMIC Administrator with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of REMIC
I or REMIC II as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York that are applicable to agreements negotiated, made and to
be performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Xxxxx Fargo Bank, N.A.,
as Trustee
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-II Certificates referred to in the within
mentioned Agreement.
Dated: June 6, 2007
Xxxxx Fargo Bank, N.A.,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of Definitive Certificates
exchanged or transferred for, or issued in Remaining Principal
exchange for or upon transfer of, an interest Amount of Book Entry Notation
Date in this Book-Entry Certificate Certificate Made By
---- ---------------------------------------------- --------------------- ---------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ____________________________________________________________
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or ________________________________________, as its agent.
EXHIBIT B
FORM OF INVESTMENT REPRESENTATION LETTER
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services (CMBS) - Banc of America
Commercial Mortgage Inc., Commercial Mortgage Pass-Through
Certificates, Series 0000-0
Xxxx xx Xxxxxxx Commercial Mortgage Inc.
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Re: Transfer of Banc of America Commercial Mortgage Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-2
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement dated as of June 1, 2007 (the "Pooling and Servicing
Agreement"), by and among Banc of America Commercial Mortgage Inc., as
Depositor, Bank of America, National Association, as Master Servicer, LNR
Partners, Inc., as Special Servicer, and Xxxxx Fargo Bank, N.A., as Trustee and
REMIC Administrator on behalf of the holders of Banc of America Commercial
Mortgage Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-2 (the
"Certificates"), in connection with the transfer by _________________ (the
"Seller") to the undersigned (the "Purchaser") of $_______________ aggregate
Certificate Balance of Class ___ Certificates (the "Certificate"). Capitalized
terms used and not otherwise defined herein shall have the respective meanings
ascribed to such terms in the Pooling and Servicing Agreement.
In connection with such transfer, the Purchaser hereby represents
and warrants to you and the addressees hereof as follows:
(1) Check one of the following:*
|_| The Purchaser is an institutional "accredited investor" (an
entity meeting the requirements of Rule 501(a)(1), (2), (3) or (7) of Regulation
D under the Securities Act of 1933, as amended (the "1933 Act")) and has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of its investment in the Certificates, and the
Purchaser and any accounts for which it is acting are each able to bear the
economic risk of the Purchaser's or such account's investment. The Purchaser is
acquiring the Certificates purchased by it for its own account or for one or
more accounts (each of which is an "institutional accredited investor") as to
each of which the Purchaser exercises sole investment discretion. The Purchaser
hereby undertakes to reimburse the Trust Fund for any costs incurred by it in
connection with this transfer.
-----------------------
* Each Purchaser must include one of the following two alternative
certifications.
|_| The Purchaser is a "qualified institutional buyer" within the
meaning of Rule 144A ("Rule 144A") promulgated under the Securities Act of 1933,
as amended (the "1933 Act"). The Purchaser is aware that the transfer is being
made in reliance on Rule 144A, and the Purchaser has had the opportunity to
obtain the information required to be provided pursuant to paragraph (d)(4)(i)
of Rule 144A.
(2) The Purchaser's intention is to acquire the Certificate (a) for
investment for the Purchaser's own account or (b) for resale (i) to
"qualified institutional buyers" in transactions under Rule 144A, and not
in any event with the view to, or for resale in connection with, any
distribution thereof, or (ii) to institutional "accredited investors"
meeting the requirements of Rule 501(a)(1), (2), (3) or (7) of Regulation
D promulgated under the 1933 Act and applicable state securities laws,
pursuant to any other exemption from the registration requirements of the
1933 Act and applicable state securities laws, subject in the case of this
clause (ii) to (w) the receipt by the Certificate Registrar of a letter
substantially in the form hereof, (x) the receipt by the Certificate
Registrar of an opinion of counsel acceptable to the Certificate Registrar
that such reoffer, resale, pledge or transfer is in compliance with the
1933 Act, (y) the receipt by the Certificate Registrar of such other
evidence acceptable to the Certificate Registrar that such reoffer,
resale, pledge or transfer is in compliance with the 1933 Act and other
applicable laws and (z) a written undertaking to reimburse the Trust for
any costs incurred by it in connection with the proposed transfer. The
Purchaser understands that the Certificate (and any subsequent
Certificate) has not been registered under the 1933 Act, by reason of a
specified exemption from the registration provisions of the 1933 Act which
depends upon, among other things, the bona fide nature of the Purchaser's
investment intent (or intent to resell to only certain investors in
certain exempted transactions) as expressed herein.
(3) The Purchaser has reviewed the Private Placement Memorandum
relating to the Certificates (the "Private Placement Memorandum") and the
agreements and other materials referred to therein and has had the
opportunity to ask questions and receive answers concerning the terms and
conditions of the transactions contemplated by the Private Placement
Memorandum.
(4) The Purchaser acknowledges that the Certificate (and any
Certificate issued on transfer or exchange thereof) has not been
registered or qualified under the 1933 Act or the securities laws of any
State or any other jurisdiction, and that the Certificate cannot be resold
unless it is registered or qualified thereunder or unless an exemption
from such registration or qualification is available.
(5) The Purchaser hereby undertakes to be bound by the terms and
conditions of the Pooling and Servicing Agreement in its capacity as an
owner of a Certificate or Certificates, as the case may be (each, a
"Certificateholder"), in all respects as if it were a signatory thereto.
This undertaking is made for the benefit of the Trust, the Certificate
Registrar and all Certificateholders present and future.
(6) The Purchaser will not sell or otherwise transfer any portion of
the Certificate or Certificates, except in compliance with Section 5.02 of
the Pooling and Servicing Agreement.
(7) Check one of the following:*
|_| The Purchaser is a U.S. Tax Person (as defined below) and it has
attached hereto an Internal Revenue Service ("IRS") Form W-9 (or successor
form).
|_| The Purchaser is not a "U.S. Tax Person" and under applicable
law in effect on the date hereof, no taxes will be required to be withheld by
the Certificate Registrar (or its agent) with respect to distributions to be
made on the Certificate. The Purchaser has attached hereto [(i) a duly executed
IRS Form W-8BEN (or successor form), which identifies such Purchaser as the
beneficial owner of the Certificate and states that such Purchaser is not a U.S.
Tax Person, (ii) two duly executed copies of IRS Form W-8IMY (with all
appropriate attachments) or (iii)]** two duly executed copies of IRS Form W-8ECI
(or successor form), which identify such Purchaser as the beneficial owner of
the Certificate and state that interest and original issue discount on the
Certificate and Permitted Investments is, or is expected to be, effectively
connected with a United States trade or business. The Purchaser agrees to
provide to the Certificate Registrar updated [IRS Form W-8BEN, IRS Form W-8IMY
or]** IRS Form W-8ECI, as the case may be, any applicable successor IRS forms,
or such other certifications as the Certificate Registrar may reasonably
request, on or before the date that any such IRS form or certification expires
or becomes obsolete, or promptly after the occurrence of any event requiring a
change in the most recent IRS form of certification furnished by it to the
Certificate Registrar.
For this purpose, "U.S. Tax Person" means a citizen or resident of
the United States for United States federal income tax purposes, a corporation
or partnership (except to the extent provided in applicable Treasury
regulations) created or organized in or under the laws of the United States, any
State thereof or the District of Columbia, including any entity treated as a
corporation or partnership for federal income tax purposes, an estate the income
of which is subject to United States federal income taxation regardless of its
source, or a trust if a court within the United States is able to exercise
primary supervision over the administration of such trust, and one or more
United States fiduciaries have the authority to control all substantial
decisions of such trust (or, to the extent provided in applicable Treasury
regulations, certain trusts in existence on August 20, 1996 which are eligible
to elect to be treated as U.S. Tax Persons).
-------------------
* Each Purchaser must include one of the two alternative certifications.
** Omit for Class R-I and Class R-II.
(8) Please make all payments due on the Certificates:***
|_| (A) by wire transfer to the following account at a bank or
entity in New York, New York, having appropriate facilities therefor:
Bank:_________________________________________
ABA#:_________________________________________
Account #:___________________________________
Attention:___________________________________
|_| (B) by mailing a check or draft to the following address:
________________________________________________
________________________________________________
________________________________________________
Very truly yours,
______________________________________
[The Purchaser]
By:______________________________
Name:
Title:
Dated:
-------------------
*** Only to be filled out by Purchasers of Definitive Certificates. Please
select (a) or (b). For holders of Definitive Certificates, wire transfers are
only available if such holder's Definitive Certificates have an aggregate
Certificate Balance or Notional Amount, as applicable, of at least U.S.
$5,000,000.
EXHIBIT C-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
PURSUANT TO SECTION 5.02(d)(i)(B)
STATE OF )
) participation.:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says that:
(1) He/She is the [Title of Officer] of [Name of Prospective
Transferee] (the prospective transferee (the "Transferee") of a Banc of
America Commercial Mortgage Inc., Commercial Mortgage Pass-Through
Certificate, Series 2007-2, Class R-[I] [II] evidencing a ____% Percentage
Interest in the Class to which it belongs (the "REMIC Residual
Certificate")), a __________________________________ duly organized and
validly existing under the laws of [the State of ____] [the United
States], on behalf of which he/she makes this affidavit. Capitalized terms
used but not defined herein have the respective meanings assigned thereto
in the Pooling and Servicing Agreement pursuant to which the REMIC
Residual Certificate was issued (the "Pooling and Servicing Agreement").
(2) The Transferee (i) is [and, as of [date of transfer], will be] a
Permitted Transferee and will endeavor to remain a Permitted Transferee
for so long as it holds the REMIC Residual Certificate, and (ii) is
acquiring the REMIC Residual Certificate for its own account or for the
account of another prospective transferee from which it has received an
affidavit in substantially the same form as this affidavit.
(3) The Transferee is aware (i) of the tax that would be imposed on
transfers of the REMIC Residual Certificate to Disqualified Organizations
under the Internal Revenue Code of 1986, as amended; (ii) that such tax
would be imposed on the transferor, or, if such transfer is through an
agent (which person includes a broker, nominee or middleman) for a
Disqualified Organization, on the agent; (iii) that the person otherwise
liable for the tax shall be relieved of liability for the tax if the
transferee furnishes to such person an affidavit that the transferee is
not a Disqualified Organization and, at the time of transfer, such person
does not have actual knowledge that the affidavit is false; and (iv) that
the REMIC Residual Certificate may be a "non-economic residual interest"
within the meaning of Treasury Regulations Section 1.860E-1(c) and that
the transferor of a "non-economic residual interest" will remain liable
for any taxes due with respect to the income on such residual interest,
unless no significant purpose of the transfer is to enable the transferor
to impede the assessment or collection of tax.
(4) The Transferee is aware of the tax imposed on a "pass-through
entity" holding the REMIC Residual Certificate if at any time during the
taxable year of the pass-through entity a "disqualified organization" is
the record holder of an interest in such entity. (For this purpose, a
"pass-through entity" includes a regulated investment company, a real
estate investment trust or common trust fund, a partnership, trust or
estate, and certain cooperatives.)
(5) The Transferee is aware that the Certificate Registrar will not
register any transfer of the REMIC Residual Certificate by the Transferee
unless the Transferee's transferee, or such transferee's agent, delivers
to the Certificate Registrar, among other things, an affidavit and
agreement in substantially the same form as this affidavit and agreement.
The Transferee expressly agrees that it will not consummate any such
transfer if it knows or believes that any representation contained in such
affidavit and agreement is false.
(6) The Transferee consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to
constitute a reasonable arrangement to ensure that the REMIC Residual
Certificate will only be owned, directly or indirectly, by a Permitted
Transferee.
(7) The Transferee's taxpayer identification number is
______________.
(8) The Transferee has reviewed the provisions of Section 5.02(d) of
the Pooling and Servicing Agreement, a description of which provisions is
set forth in the REMIC Residual Certificate (in particular, clause (ii) of
Section 5.02(d) which authorizes the Trustee to deliver payments on the
REMIC Residual Certificate to a person other than the Transferee, in the
event that the Transferee holds such REMIC Residual Certificate in
violation of Section 5.02(d)), and the Transferee expressly agrees to be
bound by and to comply with such provisions.
(9) No purpose of the Transferee relating to its purchase or any
sale of the REMIC Residual Certificate is or will be to impede the
assessment or collection of any tax.
(10) The Transferee hereby represents to and for the benefit of the
transferor that the Transferee intends to pay any taxes associated with
holding the REMIC Residual Certificate as they become due, fully
understanding that it may incur tax liabilities in excess of any cash
flows generated by the REMIC Residual Certificate.
(11) The Transferee will, in connection with any transfer that it
makes of the REMIC Residual Certificate, deliver to the Certificate
Registrar a representation letter substantially in the form of Exhibit C-2
to the Pooling and Servicing Agreement in which it will represent and
warrant, among other things, that it is not transferring the REMIC
Residual Certificate to impede the assessment or collection of any tax and
that it has at the time of such transfer conducted a reasonable
investigation of the financial condition of the proposed transferee as
contemplated by Treasury Regulations Section 1.860E-1(c)(4)(i) and has
satisfied the requirements of such provision.
(12) The Transferee will not cause income to be attributable to a
foreign permanent establishment or fixed base, within the meaning of an
applicable income tax treaty, of the Transferee or any other United States
person.
(13) Check the applicable box:
|_|__The present value of the anticipated tax liabilities associated
with holding the REMIC Residual Certificate does not exceed the sum of:
(i) the present value of any consideration given to the
Transferee to acquire such REMIC Residual Certificate;
(ii) the present value of the expected future distributions on
such REMIC Residual Certificate; and
(iii) the present value of the anticipated tax savings
associated with holding such REMIC Residual Certificate as the
related REMIC generates losses.
For purposes of this calculation, (i) the Transferee is assumed to
pay tax at the highest rate currently specified in Section 11(b) of the Code
(but the tax rate in Section 55(b)(1)(B) of the Code may be used in lieu of the
highest rate specified in Section 11(b) of the Code if the Transferee has been
subject to the alternative minimum tax under Section 55 of the Code in the
preceding two years and will compute its taxable income in the current taxable
year using the alternative minimum tax rate) and (ii) present values are
computed using a discount rate equal to the short-term Federal rate prescribed
by Section 1274(d) of the Code for the month of the transfer and the compounding
period used by the Transferee.
|_| The transfer of the REMIC Residual Certificate complies with
U.S. Treasury Regulations Sections 1.860G-1(c)(5) and (6) and, accordingly,
(i) the Transferee is an "eligible corporation," as defined in
U.S. Treasury Regulations Section 1.860E-1(c)(6)(i), as to which
income from the REMIC Residual Certificate will only be taxed in the
United States;
(ii) at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of the transfer,
the Transferee had gross assets for financial reporting purposes
(excluding any obligation of a person related to the Transferee
within the meaning of U.S. Treasury Regulations Section
1.860E-1(c)(6)(ii)) in excess of $100 million and net assets in
excess of $10 million;
(iii) the Transferee will transfer the REMIC Residual
Certificate only to another "eligible corporation," as defined in
U.S. Treasury Regulations Section 1.860E-1(c)(6)(i), in a
transaction that satisfies the requirements of U.S. Treasury
Regulations Sections 1.860G-1(c)(4)(i), (ii) and (iii) and
1.860E-1(c)(5); and
(iv) the Transferee determined the consideration paid to it to
acquire the REMIC Residual Certificate based on reasonable market
assumptions (including, but not limited to, borrowing and investment
rates, prepayment and loss assumptions, expense and reinvestment
assumptions, tax rates and other factors specific to the Transferee)
that it has determined in good faith.
|_| None of the above.
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its [Title of Officer] and its corporate seal to be hereunto attached, attested
by its [Assistant] Secretary, this ___ day of __________, 20__.
[NAME OF TRANSFEREE]
By:______________________________
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
______________________________
[Assistant] Secretary
Personally appeared before me the above named [Name of Officer],
known or proved to me to be the same person who executed the foregoing
instrument and to be the [Title of Officer] of the Transferee, and acknowledged
to me that he/she executed the same as his/her free act and deed and the free
act and deed of the Transferee
Subscribed and sworn before me this ___ day of ______________, 20__.
________________________________________
NOTARY PUBLIC
COUNTY OF ___________
STATE OF _____________
My Commission expires the _________
day of _____________, 20__.
EXHIBIT C-2
FORM OF TRANSFEROR CERTIFICATE
PURSUANT TO SECTION 5.02(d)(i)(D)
__________________, 20___
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services (CMBS) - Banc of America
Commercial Mortgage Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-2
Re: Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-2, Class R-[I] [II],
evidencing a __% percentage interest in the Class to which it
belongs
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_____________ (the "Transferor") to ____________________ (the "Transferee") of
the captioned Class R-[I] [II] Certificate (the "REMIC Residual Certificate"),
pursuant to Section 5.02 of the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated as of June 1, 2007, by and among Banc of
America Commercial Mortgage Inc., as Depositor, Bank of America, National
Association, as Master Servicer, LNR Partners, Inc., as Special Servicer, and
Xxxxx Fargo Bank, N.A., as Trustee and REMIC Administrator. All terms used
herein and not otherwise defined shall have the respective meanings set forth in
the Pooling and Servicing Agreement. The Transferor hereby represents and
warrants to you, as Certificate Registrar, that:
(1) No purpose of the Transferor relating to the transfer of the
REMIC Residual Certificate by the Transferor to the Transferee is or will
be to impede the assessment or collection of any tax.
(2) The Transferor understands that the Transferee has delivered to
you a Transfer Affidavit and Agreement in the form attached to the Pooling
and Servicing Agreement as Exhibit C-1. The Transferor does not know or
believe that any representation contained therein is false.
(3) The Transferor has at the time of this transfer conducted a
reasonable investigation of the financial condition of the Transferee as
contemplated by Treasury Regulations Section 1.860E-1(c)(4)(i) and, as a
result of that investigation, the Transferor has determined that the
Transferee has historically paid its debts as they became due and has
found no significant evidence to indicate that the Transferee will not
continue to pay its debts as they become due in the future. The Transferor
understands that the transfer of the REMIC Residual Certificate may not be
respected for United States federal income tax purposes (and the
Transferor may continue to be liable for United States federal income
taxes associated therewith) unless the Transferor has conducted such an
investigation.
Very truly yours,
______________________________________________
(Transferor)
By:______________________________
Name:
Title:
EXHIBIT D
REQUEST FOR RELEASE
____________________, 20___
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services (CMBS) - Banc of America
Commercial Mortgage Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-2
In connection with the administration of the Mortgage Files held by
or on behalf of you as Trustee under that certain Pooling and Servicing
Agreement dated as of June 1, 2007 (the "Pooling and Servicing Agreement"), by
and among Banc of America Commercial Mortgage Inc., as Depositor, Bank of
America, National Association, as Master Servicer, LNR Partners, Inc., as
Special Servicer, and Xxxxx Fargo Bank, N.A., as Trustee and REMIC
Administrator, the undersigned hereby requests a release of the Mortgage File
(or the portion thereof specified below) held by or on behalf of you as Trustee
with respect to the following described Mortgage Loan for the reason indicated
below.
Property Name:____________________________________
Address:_________________________________________
Prospectus No.:____________________________________
If only particular documents in the Mortgage File are requested, please specify
which:
______________________________________________________________________________
Reason for requesting file (or portion thereof):
______ (1) Mortgage Loan paid in full. The undersigned hereby
certifies that all amounts received in connection with the Mortgage Loan that
are required to be credited to the Certificate Account pursuant to the Pooling
and Servicing Agreement, have been or will be so credited.
______ (2) The Mortgage Loan is being foreclosed.
______ (3) Other. (Describe)
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof, unless the
Mortgage Loan has been paid in full, in which case the Mortgage File (or such
portion thereof) will be retained by us permanently, or unless the Mortgage Loan
is being foreclosed, in which case the Mortgage File (or such portion thereof)
will be returned when no longer required by us for such purpose.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
BANK OF AMERICA, NATIONAL
ASSOCIATION
By:______________________________
Name:
Title:
Phone:
LNR PARTNERS, INC.
By:______________________________
Name:
Title:
Phone:
Please deliver the Mortgage File as follows:
___________________________________
___________________________________
___________________________________
Attention: ________________________
Phone: ____________________________
EXHIBIT E
FORM OF ERISA REPRESENTATION LETTER
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services (CMBS) - Banc of America
Commercial Mortgage Inc., Commercial Mortgage Pass-Through
Certificates, Series 0000-0
Xxxx xx Xxxxxxx Commercial Mortgage Inc.
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Re: Transfer of Banc of America Commercial Mortgage Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-2
Ladies and Gentlemen:
The undersigned (the "Purchaser") proposes to purchase $____________
initial Certificate Balance of Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-2, Class __ (the
"Certificate") issued pursuant to that Pooling and Servicing Agreement, dated as
of June 1, 2007 (the "Pooling and Servicing Agreement"), by and among Banc of
America Commercial Mortgage Inc., as Depositor, Bank of America, National
Association, as Master Servicer, LNR Partners, Inc., as Special Servicer, and
Xxxxx Fargo Bank, N.A., as Trustee and REMIC Administrator. Capitalized terms
used and not otherwise defined herein have the respective meanings ascribed to
such terms in the Pooling and Servicing Agreement.
In connection with such transfer, the undersigned hereby represents
and warrants to you as follows:
(1) The Purchaser either is not (a) an employee benefit plan subject
to the fiduciary responsibility provisions of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA") or a plan subject to
Section 4975 of the Internal Revenue Code of 1986, as amended (the
"Code"), or a governmental plan (as defined in Section 3(32) of ERISA)
subject to any federal, state or local law ("Similar Law") which is, to a
material extent, similar to the foregoing provisions of ERISA or the Code
(each a "Plan") or (b) a person acting on behalf of or using the assets of
any such Plan (including an entity whose underlying assets include Plan
assets by reason of investment in the entity by any such Plan and the
application of Department of Labor Regulation ss. 2510.3-101), other than
(except with respect to the Class V Certificates and the REMIC Residual
Certificates) an insurance company using the assets of its general account
under circumstances whereby the purchase and holding of Offered Private
Certificates by such insurance company would be exempt from the prohibited
transaction provisions of ERISA and the Code under both Sections I and III
of Prohibited Transaction Class Exemption 95-60, or (except with respect
to the Class V Certificates and the REMIC Residual Certificates) will
deliver the opinion contemplated by 3 below.
(2) Except for the Class V Certificates and the REMIC Residual
Certificates (which may not transferred unless the Purchaser can make the
representation described in 1 above), the Purchaser is purchasing
Certificates, which at the time of purchase are rated "BBB-" or better by
at least one of Fitch, Inc., Standard & Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies, Inc., Xxxxx'x Investors Service,
DBRS Limited or DBRS, Inc. and the Purchaser (a) is purchasing the
Certificates pursuant to Prohibited Transaction Exemption 93-31 as amended
by Prohibited Transaction Exemption 2007-05 and (b) is an "accredited
investor" as defined in Rule 501(a)(1) of Regulation D of the Securities
and Exchange Commission under the Securities Act of 1933, as amended. If
the Purchaser is purchasing the Class A-2FL or Class A-JFL Certificates,
acquisition and holding of the Class A-2FL or Class A-JFL Certificates, as
applicable, are eligible for the exemptive relief available under at least
one of the Prohibited Transaction Class Exemption ("PTCE") 00-00, XXXX
00-0, XXXX 91-38, XXXX 00-00, XXXX 96-23 or a similar exemption under
Similar Law.
(3) Except for the Class V Certificates and the REMIC Residual
Certificates (which may not transferred unless the Purchaser can make the
representation described in 1 above), the Purchaser understands that if
the Purchaser is a Person referred to in 1(a) or (b) above and cannot make
the representation in 2 above, such Purchaser is required to provide to
the Certificate Registrar an opinion of counsel in form and substance
satisfactory to the Certificate Registrar and the Depositor to the effect
that the acquisition and holding of such Certificate by such purchaser or
transferee will not constitute or result in a non-exempt "prohibited
transaction" within the meaning of ERISA, Section 4975 of the Code or any
Similar Law, and will not subject the Trustee, the Certificate Registrar,
the Master Servicer, the Special Servicer, the Initial Purchasers or the
Depositor to any obligation or liability (including obligations or
liabilities under ERISA, Section 4975 of the Code or any such Similar Law)
in addition to those set forth in the Pooling and Servicing Agreement,
which Opinion of Counsel will not be at the expense of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Initial
Purchasers, the Certificate Registrar or the Trust Fund.
IN WITNESS WHEREOF, the Purchaser hereby executes this ERISA
Representation Letter on the ___th day of _____, ____.
Very truly yours,
______________________________________________
[The Purchaser]
By:______________________________
Name:
Title:
EXHIBIT F
FORM OF CUSTODIAL CERTIFICATION
[Date]
Banc of America Commercial Mortgage Inc.
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxx
Re: Pooling and Servicing Agreement dated as of June 1, 2007 (the
"Agreement") by and among Banc of America Commercial Mortgage Inc.,
as Depositor, Bank of America, National Association, as Master
Servicer, LNR Partners, Inc., as Special Servicer, and Xxxxx Fargo
Bank, N.A., as Trustee and REMIC Administrator, for the
Certificateholders of the Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-2
Ladies and Gentlemen:
Pursuant to Section 2.02(b) of the above referenced Agreement, the
Trustee hereby certifies as to each Mortgage Loan listed on the Mortgage Loan
Schedule (other than any Mortgage Loan paid in full), and except as specifically
identified in the exception report annexed hereto, (i) all documents specified
in the definition of "Mortgage File" are in its possession or the possession of
a Custodian on its behalf, or each Mortgage Loan Seller has otherwise satisfied
the delivery requirements in respect of such documents in accordance with
Section 2.01(b) and (ii) all documents received by it or any Custodian in
respect of such Mortgage Loan have been reviewed by it or by a Custodian on its
behalf and appear regular on their face, appear to be executed, and relate to
such Mortgage Loan.
None of the Trustee, the Master Servicer, the Special Servicer or
any Custodian is under any duty or obligation (i) to determine whether any of
the documents specified in clauses (iii), (v), (vi) and (viii) through (xii) of
the definition of "Mortgage File" exist or are required to be delivered by the
Mortgage Loan Seller in respect of any Mortgage Loan, or (ii) to inspect, review
or examine any of the documents, instruments, certificates or other papers
relating to the Mortgage Loans delivered to it to determine that the same are
valid, legal, effective, genuine, binding, enforceable, sufficient or
appropriate for the represented purpose or that they are other than what they
purport to be on their face. Notwithstanding the foregoing, with respect to
Letters of Credit referenced in clause (xii) of the definition of "Mortgage
File" the Trustee shall perform the review set forth in Section
2.02(b)(iii)(A)-(C) of the Agreement. Furthermore, except as expressly provided
in Section 2.02(b) of the Agreement, none of the Trustee, the Master Servicer,
the Special Servicer or any Custodian shall have any responsibility for
determining whether the text of any assignment or endorsement is in proper or
recordable form, whether the requisite recording of any document is in
accordance with the requirements of any applicable jurisdiction, or whether a
blanket assignment is permitted in any applicable jurisdiction.
Any terms used herein and not defined shall have the respective
meaning assigned to them in the Agreement.
Respectfully,
[Name]
[Title]
cc: Xxxx X. Xxxxxxx, Esq., Assistant General Counsel, Bank of America
Corporation
EXHIBIT G
FORM OF TRUSTEE DISTRIBUTION DATE STATEMENT
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-2 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 07/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 06/29/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 06/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
DISTRIBUTION DATE STATEMENT
Table of Contents
-------------------------------------------------------------------------------
STATEMENT SECTIONS PAGE(s)
------------------ -------
Certificate Distribution Detail 2
Certificate Factor Detail 3
Reconciliation Detail 4
Other Required Information 5
Cash Reconciliation Detail 6
Ratings Detail 8
Current Mortgage Loan and Property Stratification Tables 8 - 16
Mortgage Loan Detail 17
NOI Detail 18
Principal Prepayment Detail 19
Historical Detail 20
Delinquency Loan Detail 21
Specially Serviced Loan Detail 22 - 23
Advance Summary 24
Modified Loan Detail 25
Historical Liquidated Loan Detail 26
Historical Bond / Collateral Realized Loss Reconciliation 27
Interest Shortfall Reconciliation Detail 28 - 29
Defeased Loan Detail 30
Supplemental Reporting 31
-------------------------------------------------------------------------------
Depositor Master Servicer Special Servicer
-------------------------------------- ------------------------------------------- --------------------------------------
Banc of America Commercial Mortgage Bank of America, N.A. LNR Partners, Inc.
Inc. 000 Xxxx Xxxxx Xxxxxx 0000 Xxxxxxxxxx Xxxxxx
000 Xxxxx Xxxxx Xxxxxx Xxxxx 000 Xxxxx 000
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000 Xxxxx Xxxxx, XX 00000
Contact: Xxxxxxx Xxxxx Contact: Xxxxxxx Xxxxx Contact: Xxxxxx Xxxxxx
Phone Number: (000) 000-0000 Phone Number: (000) 000-0000 Phone Number: (000) 000-0000
-------------------------------------- ------------------------------------------- --------------------------------------
This report has been compiled from information provided to Xxxxx Fargo Bank, N.A. by various third parties, which may include the
Master Servicer, Special Servicer and others. Xxxxx Fargo Bank, N.A. has not independently confirmed the accuracy of information
received from these third parties and assumes no duty to do so. Xxxxx Fargo Bank, N.A. expressly disclaims any responsibility for
the accuracy or completeness of information furnished by third parties.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 1 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-2 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 07/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 06/29/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 06/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Certificate Distribution Detail
-----------------------------------------------------------------------------------------------------------------------------------
Realized Loss / Current
Pass-Through Original Beginning Principal Interest Prepayment Additional Trust Total Ending Subordination
Class CUSIP Rate Balance Balance Distribution Distribution Premium Fund Expenses Distribution Balance Level(1)
-----------------------------------------------------------------------------------------------------------------------------------
A-1 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-2 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-3 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-4 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-1A 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-1B 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-M 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-J 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-2FL 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-JFL 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
E 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
F 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
G 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
H 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
J 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
K 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
L 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
M 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
N 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
O 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
P 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Q 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
S 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
V 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
-----------------------------------------------------------------------------------------------------------------------------------
Totals 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
-----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
Original Beginning Ending
Pass-Through Notional Notional Interest Prepayment Total Notional
Class CUSIP Rate Amount Amount Distribution Premium Distribution Amount
----------------------------------------------------------------------------------------------
XW 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00
----------------------------------------------------------------------------------------------
(1) Calculated by taking (A) the sum of the ending certificate balance of all classes less (B) the sum of (i) the ending
balance of the designated class and (ii) the ending certificate balance of all classes which are not subordinate
to the designated class and deviding the result by (A).
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 2 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-2 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 07/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 06/29/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 06/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Certificate Factor Detail
--------------------------------------------------------------------------------------------------------------
Realized Loss /
Beginning Principal Interest Prepayment Additional Trust Ending
Class CUSIP Balance Distribution Distribution Premium Fund Expenses Balance
--------------------------------------------------------------------------------------------------------------
A-1 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-2 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-3 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-4 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-1A 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-1B 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-M 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-J 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-2FL 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-JFL 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
E 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
F 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
G 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
H 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
J 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
K 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
L 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
M 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
N 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
O 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
P 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
Q 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
S 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
V 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
--------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------
Beginning Ending
Notional Interest Prepayment Notional
Class CUSIP Amount Distribution Premium Amount
---------------------------------------------------------------------------
XW 0.00000000 0.00000000 0.00000000 0.00000000
---------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 3 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-2 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 07/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 06/29/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 06/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Reconciliation Detail
Principal Reconciliation
Stated Beginning Principal Unpaid Beginning Scheduled Unscheduled Principal
Loan Group Balance Principal Balance Principal Principal Adjustments
---------- -------------------------- ----------------- --------- ----------- -----------
1 0.00 0.00 0.00 0.00 0.00
2 0.00 0.00 0.00 0.00 0.00
---------- -------------------------- ----------------- --------- ----------- -----------
Total 0.00 0.00 0.00 0.00 0.00
Realized Stated Ending Unpaid Ending Current Principal
Loan Group Loss Principal Balance Principal Balance Distribution Amount
---------- -------- ----------------- ----------------- -------------------
1 0.00 0.00 0.00 0.00
2 0.00 0.00 0.00 0.00
---------- -------- ----------------- ----------------- -------------------
Total 0.00 0.00 0.00 0.00
Certificate Interest Reconciliation
---------------------------------------------------------------------------------------------
Accrued Net Aggregate Distributable Distributable
Accrual Accrual Certificate Prepayment Certificate Certificate Interest
Class Dates Days Interest Interest Shortfall Interest Adjustment
---------------------------------------------------------------------------------------------
A-1 0 0 0.00 0.00 0.00 0.00
A-2 0 0 0.00 0.00 0.00 0.00
A-3 0 0 0.00 0.00 0.00 0.00
A-4 0 0 0.00 0.00 0.00 0.00
A-1A 0 0 0.00 0.00 0.00 0.00
A-AB 0 0 0.00 0.00 0.00 0.00
A-M 0 0 0.00 0.00 0.00 0.00
A-J 0 0 0.00 0.00 0.00 0.00
A-2FL 0 0 0.00 0.00 0.00 0.00
XW 0 0 0.00 0.00 0.00 0.00
A-JFL 0 0 0.00 0.00 0.00 0.00
E 0 0 0.00 0.00 0.00 0.00
F 0 0 0.00 0.00 0.00 0.00
G 0 0 0.00 0.00 0.00 0.00
H 0 0 0.00 0.00 0.00 0.00
J 0 0 0.00 0.00 0.00 0.00
K 0 0 0.00 0.00 0.00 0.00
L 0 0 0.00 0.00 0.00 0.00
M 0 0 0.00 0.00 0.00 0.00
N 0 0 0.00 0.00 0.00 0.00
O 0 0 0.00 0.00 0.00 0.00
P 0 0 0.00 0.00 0.00 0.00
Q 0 0 0.00 0.00 0.00 0.00
---------------------------------------------------------------------------------------------
Totals 0 0.00 0.00 0.00 0.00
---------------------------------------------------------------------------------------------
Certificate Interest Reconciliation
-----------------------------------------------------------------
Additional Remaining Unpaid
WAC CAP Trust Fund Interest Distributable
Class Shortfall Expenses Distribution Certificate Interest
-----------------------------------------------------------------
A-1 0.00 0.00 0.00 0.00
A-2 0.00 0.00 0.00 0.00
A-3 0.00 0.00 0.00 0.00
A-4 0.00 0.00 0.00 0.00
A-1A 0.00 0.00 0.00 0.00
A-AB 0.00 0.00 0.00 0.00
A-M 0.00 0.00 0.00 0.00
A-J 0.00 0.00 0.00 0.00
A-2FL 0.00 0.00 0.00 0.00
XW 0.00 0.00 0.00 0.00
A-JFL 0.00 0.00 0.00 0.00
E 0.00 0.00 0.00 0.00
F 0.00 0.00 0.00 0.00
G 0.00 0.00 0.00 0.00
H 0.00 0.00 0.00 0.00
J 0.00 0.00 0.00 0.00
K 0.00 0.00 0.00 0.00
L 0.00 0.00 0.00 0.00
M 0.00 0.00 0.00 0.00
N 0.00 0.00 0.00 0.00
O 0.00 0.00 0.00 0.00
P 0.00 0.00 0.00 0.00
Q 0.00 0.00 0.00 0.00
-----------------------------------------------------------------
Totals 0.00 0.00 0.00 0.00
-----------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 4 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-2 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 07/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 06/29/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 06/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Other Required Information
--------------------------------------------------------------------------------
Available Distribution Amount (1) 0.00
Master Servicing Fee Summary
Current Period Accrued Master Servicing Fees 0.00
Less Delinquent Master Servicing Fees 0.00
Less Reductions to Master Servcing Fees 0.00
Plus Master Servicing Fees for Delinquent Payments Received 0.00
Plus Adjustments for Prior Master Servicing Calculation 0.00
Total Master Servicing Fees Collected 0.00
(1) The Available Distribution Amount includes any Prepayment Premiums.
Appraisal Reduction Amount
-------------------------------------------------
Appraisal Cumulative Most Recent
Loan Reduction ASER App. Red.
Number Amount Amount Date
-------------------------------------------------
-------------------------------------------------
Total
-------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 5 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-2 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 07/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 06/29/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 06/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Cash Reconciliation Detail
---------------------------------------------------------------------------------------------------------------------------------
Total Funds Collected
Interest:
Interest paid or advanced 0.00
Interest reductions due to Non-Recoverability Determinations 0.00
Interest Adjustments 0.00
Deferred Interest 0.00
Net Prepayment Interest Shortfall 0.00
Net Prepayment Interest Excess 0.00
Extension Interest 0.00
Interest Reserve Withdrawal 0.00
--------------
Total Interest Collected 0.00
Principal:
Scheduled Principal 0.00
Unscheduled Principal 0.00
Principal Prepayments 0.00
Collection of Principal after Maturity Date 0.00
Recoveries from Liquidation and Insurance Proceeds 0.00
Excess of Prior Principal Amounts paid 0.00
Curtailments 0.00
Negative Amortization 0.00
Principal Adjustments 0.00
--------------
Total Principal Collected 0.00
Other:
Prepayment Penalties/Yield Maintenance 0.00
Repayment Fees 0.00
Borrower Option Extension Fees 0.00
Equity Payments Received 0.00
Net Swap Counterparty Payments Received 0.00
--------------
Total Other Collected 0.00
--------------
Total Funds Collected 0.00
==============
Total Funds Distributed
Fees:
Master Servicing Fee 0.00
Trustee Fee 0.00
Certificate Administration Fee 0.00
Insurer Fee 0.00
Miscellaneous Fee 0.00
--------------
Total Fees 0.00
Additional Trust Fund Expenses:
Reimbursement for Interest on Advances 0.00
ASER Amount 0.00
Special Servicing Fee 0.00
Rating Agency Expenses 0.00
Attorney Fees & Expenses 0.00
Bankruptcy Expense 0.00
Taxes Imposed on Trust Fund 0.00
Non-Recoverable Advances 0.00
Other Expenses 0.00
--------------
Total Additional Trust Fund Expenses 0.00
Interest Reserve Deposit 0.00
Payments to Certificateholders & Others:
Interest Distribution 0.00
Principal Distribution 0.00
Prepayment Penalties/Yield Maintenance 0.00
Borrower Option Extension Fees 0.00
Equity Payments Paid 0.00
Net Swap Counterparty Payments Paid 0.00
--------------
Total Payments to Certificateholders & Others 0.00
--------------
Total Funds Distributed 0.00
==============
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 6 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-2 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 07/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 06/29/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 06/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Ratings Detail
---------------------------------------------------------------------------------------------------------------
Original Ratings Current Ratings (1)
------------------------------------------------------------------------------
Class CUSIP Fitch Xxxxx'x S & P Fitch Xxxxx'x S & P
---------------------------------------------------------------------------------------------------------------
X-0
X-0
X-0
X-0
X-0X
X-XX
A-M
A-J
A-2FL
XW
A-JFL
E
F
G
H
J
K
L
M
N
O
P
Q
S
V
---------------------------------------------------------------------------------------------------------------
NR - Designates that the class was not rated by the above agency at the time of original issuance.
X - Designates that the above rating agency did not rate any classes in this transaction at the time of original issuance.
N/A - Data not available this period.
1) For any class not rated at the time of original issuance by any particular rating agency, no request has been made
subsequent to issuance to obtain rating information, if any, from such rating agency. The current ratings were obtained
directly from the applicable rating agency within 30 days of the payment date listed above. The ratings may have changed since
they were obtained. Because the ratings may have changed, you may want to obtain current ratings directly from the rating
agencies.
Fitch, Inc. Xxxxx'x Investors Service Standard & Poor's Rating Services
Xxx Xxxxx Xxxxxx Xxxxx 00 Xxxxxx Xxxxxx 00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000 (000) 000-0000 (000) 000-0000
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 7 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-2 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 07/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 06/29/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 06/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Aggregate Pool
Scheduled Balance State (3)
---------------------------------------------------------------- ----------------------------------------------------------------
% of % of
Scheduled # of Scheduled Agg. WAM Weighted # of Scheduled Agg. WAM Weighted
Balance Loans Balance Bal. (2) WAC Avg DSCR (1) State Props Balance Bal. (2) WAC Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
See footnotes on last page of this section.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 8 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-2 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 07/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 06/29/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 06/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Aggregate Pool
Debt Service Coverage Ratio Property Type (3)
---------------------------------------------------------------- ----------------------------------------------------------------
Debt Service % of % of
Coverage # of Scheduled Agg. WAM WAC Weighted Property # of Scheduled Agg. WAM WAC Weighted
Ratio Loans Balance Bal. (2) Avg DSCR (1) Type Props Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
Note Rate Seasoning
---------------------------------------------------------------- ----------------------------------------------------------------
% of % of
Note # of Scheduled Agg. WAM WAC Weighted # of Scheduled Agg. WAM WAC Weighted
Rate Loans Balance Bal. (2) Avg DSCR (1) Seasoning Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
See footnotes on last page of this section.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 9 of 28
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-2 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 07/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 06/29/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 06/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Aggregate Pool
Anticipated Remaining Term (ARD and Balloon Loans) Remaining Stated Term (Fully Amortizing Loans)
---------------------------------------------------------------- ----------------------------------------------------------------
Anticipated % of Remaining % of
Remaining # of Scheduled Agg. WAM WAC Weighted Stated # of Scheduled Agg. WAM WAC Weighted
Term (2) Loans Balance Bal. (2) Avg DSCR (1) Term Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
Remaining Amortization Term (ARD and Balloon Loans) Age of Most Recent NOI
---------------------------------------------------------------- ----------------------------------------------------------------
Remaining % of % of
Amortization # of Scheduled Agg. WAM WAC Weighted Age of Most # of Scheduled Agg. WAM WAC Weighted
Term Loans Balance Bal. (2) Avg DSCR (1) Recent NOI Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
(1) Debt Service Coverage Ratios are updated periodically as new NOI figures become available from borrowers on an asset level. In
all cases, the most recent DSCR provided by the Servicer is used. To the extent that no DSCR is provided by the Servicer,
information from the offering document is used. The Trustee makes no representations as to the accuracy of the data provided by
the borrower for this calculation.
(2) Anticipated Remaining Term and WAM are each calculated based upon the term from the current month to the earlier of the
Anticipated Repayment Date, if applicable, and the maturity date.
(3) Data in this table was calculated by allocating pro-rata the current loan information to the properties based upon the Cut-off
Date balance of each property as disclosed in the offering document.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 10 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-2 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 07/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 06/29/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 06/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Group I
Scheduled Balance State (3)
---------------------------------------------------------------- ----------------------------------------------------------------
% of % of
Scheduled # of Scheduled Agg. WAM Weighted # of Scheduled Agg. WAM Weighted
Balance Loans Balance Bal. (2) WAC Avg DSCR (1) State Props Balance Bal. (2) WAC Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
See footnotes on last page of this section.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 11 of 28
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-2 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 07/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 06/29/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 06/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Group I
Debt Service Coverage Ratio Property Type (3)
---------------------------------------------------------------- ----------------------------------------------------------------
Debt Service % of % of
Coverage # of Scheduled Agg. WAM WAC Weighted Property # of Scheduled Agg. WAM WAC Weighted
Ratio Loans Balance Bal. (2) Avg DSCR (1) Type Props Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
Note Rate Seasoning
---------------------------------------------------------------- ----------------------------------------------------------------
% of % of
Note # of Scheduled Agg. WAM WAC Weighted # of Scheduled Agg. WAM WAC Weighted
Rate Loans Balance Bal. (2) Avg DSCR (1) Seasoning Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
See footnotes on last page of this section.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 12 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-2 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 07/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 06/29/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 06/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Group I
Anticipated Remaining Term (ARD and Balloon Loans) Remaining Stated Term (Fully Amortizing Loans)
---------------------------------------------------------------- ----------------------------------------------------------------
Anticipated % of Remaining % of
Remaining # of Scheduled Agg. WAM WAC Weighted Stated # of Scheduled Agg. WAM WAC Weighted
Term (2) Loans Balance Bal. (2) Avg DSCR (1) Term Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
Remaining Amortization Term (ARD and Balloon Loans) Age of Most Recent NOI
---------------------------------------------------------------- ----------------------------------------------------------------
Remaining % of % of
Amortization # of Scheduled Agg. WAM WAC Weighted Age of Most # of Scheduled Agg. WAM WAC Weighted
Term Loans Balance Bal. (2) Avg DSCR (1) Recent NOI Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
(1) Debt Service Coverage Ratios are updated periodically as new NOI figures become available from borrowers on an asset
level. In all cases, the most recent DSCR provided by the Servicer is used. To the extent that no DSCR is provided by the
Servicer, information from the offering document is used. The Trustee makes no representations as to the accuracy of the
data provided by the borrower for this calculation.
(2) Anticipated Remaining Term and WAM are each calculated based upon the term from the current month to the earlier of
the Anticipated Repayment Date, if applicable, and the maturity date.
(3) Data in this table was calculated by allocating pro-rata the current loan information to the properties based upon
the Cut-off Date balance of each property as disclosed in the offering document.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 13 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-2 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 07/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 06/29/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 06/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Group II
Scheduled Balance State (3)
---------------------------------------------------------------- ----------------------------------------------------------------
% of % of
Scheduled # of Scheduled Agg. WAM Weighted # of Scheduled Agg. WAM Weighted
Balance Loans Balance Bal. (2) WAC Avg DSCR (1) State Props Balance Bal. (2) WAC Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
See footnotes on last page of this section.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 14 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-2 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 07/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 06/29/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 06/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Group II
Debt Service Coverage Ratio Property Type (3)
---------------------------------------------------------------- ----------------------------------------------------------------
Debt Service % of % of
Coverage # of Scheduled Agg. WAM WAC Weighted Property # of Scheduled Agg. WAM WAC Weighted
Ratio Loans Balance Bal. (2) Avg DSCR (1) Type Props Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
Note Rate Seasoning
---------------------------------------------------------------- ----------------------------------------------------------------
% of % of
Note # of Scheduled Agg. WAM WAC Weighted # of Scheduled Agg. WAM WAC Weighted
Rate Loans Balance Bal. (2) Avg DSCR (1) Seasoning Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
See footnotes on last page of this section.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 15 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-2 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 07/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 06/29/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 06/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Group II
Anticipated Remaining Term (ARD and Balloon Loans) Remaining Stated Term (Fully Amortizing Loans)
---------------------------------------------------------------- ----------------------------------------------------------------
Anticipated % of Remaining % of
Remaining # of Scheduled Agg. WAM WAC Weighted Stated # of Scheduled Agg. WAM WAC Weighted
Term (2) Loans Balance Bal. (2) Avg DSCR (1) Term Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
Remaining Amortization Term (ARD and Balloon Loans) Age of Most Recent NOI
---------------------------------------------------------------- ----------------------------------------------------------------
Remaining % of % of
Amortization # of Scheduled Agg. WAM WAC Weighted Age of Most # of Scheduled Agg. WAM WAC Weighted
Term Loans Balance Bal. (2) Avg DSCR (1) Recent NOI Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
(1) Debt Service Coverage Ratios are updated periodically as new NOI figures become available from borrowers on an asset
level. In all cases, the most recent DSCR provided by the Servicer is used. To the extent that no DSCR is provided by the
Servicer, information from the offering document is used. The Paying Agent makes no representations as to the accuracy of
the data provided by for this calculation.
(2) Anticipated Remaining Term and WAM are each calculated based upon the term from the current month to the earlier of the
Anticipated Repayment Date, if applicable, and the maturity date.
(3) Data in this table was calculated by allocating pro-rata the current loan information to the properties based upon the
Cut-off Date balance of each property as disclosed in the offering document.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 16 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-2 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 07/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 06/29/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 06/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Mortgage Loan Detail
---------------------------------------------------------------------------------------------------------------------------
Anticipated Neg. Beginning Ending Paid
Loan Property Interest Principal Gross Repayment Maturity Amort Scheduled Scheduled Thru
Number ODCR Type (1) City State Payment Payment Coupon Date Date (Y/N) Balance Balance Date
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
Totals
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------
Appraisal Appraisal Res. Mod.
Loan Reduction Reduction Strat. Code
Number Date Amount (2) (3)
---------------------------------------------
---------------------------------------------
Totals
---------------------------------------------
--------------------------------------------------------------------------------
(1) Property Type Code
----------------------
MF - Multi-Family OF - Office
RT - Retail MU - Mixed Use
HC - Health Care LO - Lodging
IN - Industrial SS - Self Storage
WH - Warehouse OT - Other
MH - Mobile Home Park
(2) Resolution Strategy Code
----------------------------
1 - Modification 6 - DPO 10 - Deed in Lieu Of
2 - Foreclosure 7 - REO Foreclosure
3 - Bankruptcy 8 - Resolved 11 - Full Payoff
4 - Extension 9 - Pending Return 12 - Reps and Warranties
5 - Note Sale to Master Servicer 13 - Other or TBD
(3) Modification Code
---------------------
1 - Maturity Date Extension
2 - Amortization Change
3 - Principal Write-Off
4 - Combination
--------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 17 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-2 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 07/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 06/29/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 06/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
NOI Detail
-----------------------------------------------------------------------------------------------------------------------------------
Ending Most Most Most Recent Most Recent
Loan Property Scheduled Recent Recent NOI Start NOI End
Number ODCR Type City State Balance Fiscal NOI NOI Date Date
-----------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Totals
------------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 18 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-2 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 07/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 06/29/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 06/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Principal Prepayment Detail
--------------------------------------------------------------------------------------------------------
Principal Prepayment Amount
Offering Document --------------------------------------
Loan Number Loan Group Cross-Reference Payoff Amount Curtailment Amount
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
Totals
--------------------------------------------------------------------
--------------------------------------------------------------------
Prepayment Penalties
--------------------------------------------------
Loan Number Percentage Premium Yield Maintenance Premium
--------------------------------------------------------------------
--------------------------------------------------------------------
Totals
--------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 19 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-2 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 07/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 06/29/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 06/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Historical Detail
------------------------------------------------------------------------------------------------------------------------------------
Delinquencies
-------------------------------------------------------------------------------------------------
Distribution 30-59 Days 60-89 Days 90 Days or More Foreclosure REO Modifications
Date # Balance # Balance # Balance # Balance # Balance # Balance
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
Prepayments Rate and Maturities
--------------------------------------------------------------------------------------
Distribution Curtailments Payoff Next Weighted Avg.
Date # Balance # Balance Coupon Remit WAM
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
Note: Foreclosure and REO Totals are excluded from the delinquencies aging categories.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 20 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-2 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 07/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 06/29/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 06/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Delinquency Loan Detail
-----------------------------------------------------------------------------------------------------------------------------------
Offering # of Current Outstanding Status of Resolution
Document Months Paid Through P & I P & I Mortgage Strategy Servicing Foreclosure
Loan Number Cross-Reference Delinq. Date Advances Advances ** Loan (1) Code (2) Transfer Date Date
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Totals
-----------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------
Actual Outstanding
Principal Servicing Bankruptcy REO
Loan Number Balance Advances Date Date
--------------------------------------------------------------
--------------------------------------------------------------
Totals
--------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
(1) Status of Mortgage Loan
---------------------------
A - Payment Not Received 0 - Current 4 - Assumed Scheduled Payment
But Still in Grace Period 1 - One Month Delinquent (Performing Matured Loan)
B - Late Payment But Less 2 - Two Months Delinquent 7 - Foreclosure
Than 1 Month Delinquent 3 - Three or More Months Delinquent 9 - REO
(2) Resolution Strategy Code
----------------------------
1 - Modification 6 - DPO 10 - Deed In Lieu Of
2 - Foreclosure 7 - REO Foreclosure
3 - Bankruptcy 8 - Resolved 11 - Full Payoff
4 - Extension 9 - Pending Return 12 - Reps and Warranties
5 - Note Sale to Master Servicer 13 - Other or TBD
-------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 21 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-2 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 07/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 06/29/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 06/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Specially Serviced Loan Detail - Part 1
---------------------------------------------------------------------------------------------------------------------
Offering Servicing Resolution
Distribution Loan Document Transfer Strategy Scheduled Property Interest Actual
Date Number Cross-Reference Date Code (1) Balance Type (2) State Rate Balance
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------
Net Remaining
Distribution Operating NOI Note Maturity Amortization
Date Income Date DSCR Date Date Term
----------------------------------------------------------------------------
----------------------------------------------------------------------------
(1) Resolution Strategy Code
----------------------------
1 - Modification 6 - DPO 10 - Deed in Lieu Of
2 - Foreclosure 7 - REO Foreclosure
3 - Bankruptcy 8 - Resolved 11 - Full Payoff
4 - Extension 9 - Pending Return 12 - Reps and Warranties
5 - Note Sale to Master Servicer 13 - Other or TBD
(2) Property Type Code
----------------------
MF - Multi-Family OF - Office
RT - Retail MU - Mixed Use
HC - Health Care LO - Lodging
IN - Industrial SS - Self Storage
WH - Warehouse OT - Other
MH - Mobile Home Park
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 22 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-2 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 07/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 06/29/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 06/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Specially Serviced Loan Detail - Part 2
------------------------------------------------------------------------------------------------------------------------------------
Offering Resolution Site
Distribution Loan Document Strategy Inspection Appraisal Appraisal Other REO
Date Number Cross-Reference Code (1) Date Phase 1 Date Date Value Property Revenue Comment
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
(1) Resolution Strategy Code
----------------------------
1 - Modification 6 - DPO 10 - Deed in Lieu Of
2 - Foreclosure 7 - REO Foreclosure
3 - Bankruptcy 8 - Resolved 11 - Full Payoff
4 - Extension 9 - Pending Return 12 - Reps and Warranties
5 - Note Sale to Master Servicer 13 - Other or TBD
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 23 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-2 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 07/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 06/29/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 06/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Advance Summary
Current Period Interest
Current P&I Outstanding P&I Outstanding Servicing on P&I and Servicing
Loan Group Advances Advances Advances Advances Paid
---------- ----------- --------------- --------------------- -----------------------
1 0.00 0.00 0.00 0.00
2 0.00 0.00 0.00 0.00
---------- ----------- --------------- --------------------- -----------------------
Totals 0.00 0.00 0.00 0.00
Copyright, Xxxxx Fargo Bank, N.A. Page 24 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-2 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 07/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 06/29/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 06/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Modified Loan Detail
-----------------------------------------------------------------------------------------------------------------------------------
Offering
Loan Document Pre-Modification Post-Modification Pre-Modification Post-Modification Modification
Number Cross-Reference Balance Balance Interest Rate Interest Rate Date
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Totals
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Loan Modification
Number Description
------------------------
------------------------
Totals
------------------------
------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 25 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-2 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 07/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 06/29/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 06/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Historical Liquidated Loan Detail
----------------------------------------------------------------------------------------------------------------------
Beginning Fees, Most Recent Gross Sales Net Proceeds
Distribution Scheduled Advances, Appraised Proceeds or Received on
Date ODCR Balance and Expenses* Value or BPO Other Proceeds Liquidation
----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
Current Total
-----------------------------------------------------------------------------------------------------------------------
Cumulative Total
-----------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
Net Proceeds Date of Current Current Period Cumulative Loss to Loan
Distribution Available for Realized Period Adj. Adjustment Adjustment with Cum
Date Distribution Loss to Trust to Trust to Trust to Trust Adj. to Trust
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
Current Total
---------------------------------------------------------------------------------------------------------------------------------
Cumulative Total
---------------------------------------------------------------------------------------------------------------------------------
* Fees, Advances and Expenses also include outstanding P & I advances and unpaid fees (servicing, trustee, etc.).
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 26 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-2 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 07/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 06/29/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 06/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Historical Bond/Collateral Reallized Loss Reconciliation Detail
Offering Beginning Aggregate Prior Realized Amounts Interest Modification
Distribution Document Balance Realized Loss Loss Applied Covered By (Shortages)/ /Appraisal
Date Cross-Reference at Liquidation on Loans to Certificates Credit Support Excesses Reduction Adj.
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Totals
------------------------------------------------------------------------------------------------------------------------------------
Additional Realized Loss Recoveries of (Recoveries)/
Distribution (Recoveries) Applied to Realized Losses Losses Applied to
Date /Expenses Certificates to Date Paid as Cash Certificate Interest
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
Totals
-------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 27 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-2 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 07/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 06/29/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 06/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Interest Shortfall Reconciliation Detail - Part 1
Offering Stated Principal Current Ending Special Servicing Fees Non-Recoverable
Document Balance at Scheduled -------------------------------- (Scheduled
Cross-Reference Contribution Balance Monthly Liquidation Work Out ASER (PPIS) Excess Interest)
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
Totals
----------------------------------------------------------------------------------------------------------------------------------
Offering Modified Interest Additional
Document Interest on Rate (Reduction) Trust Fund
Cross-Reference Advances /Excess Expense
--------------------------------------------------------------
--------------------------------------------------------------
Totals
--------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 28 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-2 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 07/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 06/29/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 06/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Interest Shortfall Reconciliation Detail - Part 2
Reimb of Advances to the Servicer
Offering Stated Principal Current Ending ---------------------------------
Document Balance at Scheduled Left to Reimburse Other (Shortfalls)/
Cross-Reference Contribution Balance Current Month Master Servicer Refunds Comments
------------------------------------------------------------------------------------------------------------------------
Totals
------------------------------------------------------------------------------------------------------------------------
Interest Shortfall Reconciliation Detail Part 2 Total 0.00
------------------------------------------------------------------------------------------------------------------------
Interest Shortfall Reconciliation Detail Part 1 Total 0.00
------------------------------------------------------------------------------------------------------------------------
Total Interest Shortfall Allocated to Trust 0.00
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 29 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-2 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 07/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 06/29/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 06/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Defeased Loan Detail
-----------------------------------------------------------------------------------------------------------------------------------
Offering Document Ending Scheduled
Loan Number Cross-Reference Balance Maturity Date Note Rate Defeasance Status
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Totals
-----------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 30 of 31
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Banc of America Commercial Mortgage Inc. | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- Series 2007-2 | Reports Available @ www/xxxxxxx.xxx/xxxx |
----------------------------------------------
Xxxxx Fargo Bank, N.A.
Corporate Trust Services Payment Date: 07/10/2007
0000 Xxx Xxxxxxxxx Xxxx Record Date: 06/29/2007
Xxxxxxxx, XX 00000-0000 Determination Date: 06/06/2007
-----------------------------------------------------------------------------------------------------------------------------------
Supplemental Reporting
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 31 of 31
EXHIBIT H
FORM OF REQUEST FOR REVIEW
__________________, 20_____
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services (CMBS) - Banc of America
Commercial Mortgage Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-2
Re: Pooling and Servicing Agreement dated as of June 1, 2007 (the
"Agreement") by and among Banc of America Commercial Mortgage Inc.,
as Depositor, Bank of America, National Association, as Master
Servicer, LNR Partners, Inc., as Special Servicer, and Xxxxx Fargo
Bank, N.A., as Trustee and REMIC Administrator, for the
Certificateholders of Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-2
Ladies and Gentlemen:
Pursuant to Section 2.02(b) of the above referenced Agreement,
[_________________] requests a review of the following Mortgage file:
Property Name: ________________________________________
Property Address: ________________________________________
Loan Number: ________________________________________
The results of such review should be returned to
[___________________] at the following address:
________________________________
________________________________
________________________________
Phone: _________________________
Fax: _________________________
EXHIBIT I
FORM OF NOTICE REGARDING PURCHASE OPTION EXERCISE
[Letterhead of Master Servicer]
[Date]
[Option Holder]
Re: Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-2
Ladies and Gentlemen:
You are the holder of an assignable option (the "Purchase Option")
to purchase Mortgage Loan number ____ from the Trust Fund, pursuant to Section
3.18 of the pooling and servicing agreement (the "Pooling and Servicing
Agreement") dated as of June 1, 2007, by and among Banc of America Commercial
Mortgage Inc., as Depositor, Bank of America, National Association, as Master
Servicer, LNR Partners, Inc., as Special Servicer, and Xxxxx Fargo Bank, N.A.,
as Trustee and REMIC Administrator. Capitalized terms used herein and not
otherwise defined shall have the meaning set forth in the Pooling and Servicing
Agreement.
This notice is to inform you that the exercise of your Purchase
Option in respect of Mortgage Loan number ___, pursuant to your Purchase Option
Notice dated _________, a copy of which is attached hereto, is effective.
Pursuant to Section 3.18(d) of the Pooling and Servicing Agreement and your
Purchase Option Notice, closing of [your] [_________'s] acquisition of Mortgage
Loan number ___ shall occur within ten (10) Business Days of your receipt of
this notice, at the place and in the manner described below.
[Describe closing mechanics. Describe documents or instruments
required to be prepared by Option Holder in connection with assignment and
release of the related Mortgage Loan.]
Upon payment of the Option Price, Mortgage Loan number ___ and the
related Mortgaged Property will be released and the related Mortgage Loan File
will be delivered to [you] [__________] or at [your] [_________'s] direction.
Drafts of such instruments of transfer or assignment, in each case
without recourse, reasonably necessary to vest in [you] or [________] the
ownership of Mortgage Loan ____, together with [describe other documents or
instruments reasonably required to consummate the purchase] should be delivered
to [____________] for review as soon as is practicable.
[Provide Master Servicer contact information.]
Please acknowledge receipt of this letter by signing the enclosed
copy and return it to my attention.
Sincerely,
By:______________________________
Name:
Title:
Option Holder's Acknowledgment
By: ___________________________
Name:
Title:
Date:
EXHIBIT J
FORM OF
NOTICE AND CERTIFICATION
REGARDING DEFEASANCE OF MORTGAGE LOAN
For any loan that is not among ten (10) largest loans in pool, and that has an
outstanding balance less than both (a) $35,000,000 and (b) 5.0% of
outstanding pool balance
To: Standard & Poor's Ratings Services
a division of The McGraw Hill Companies, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Commercial Mortgage Surveillance
From: Bank of America, National Association, in its capacity as
Master Servicer (the "Master Servicer") under the Pooling
and Servicing Agreement dated as of June 1, 2007 (the
"Pooling and Servicing Agreement"), among the Master
Servicer, LNR Partners, Inc., as Special Servicer, and
Xxxxx Fargo Bank, N.A., as Trustee and REMIC Administrator.
Date: _________, 20___
Re: Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-2
Mortgage Loan (the "Mortgage Loan") identified by loan number _____ on the
Mortgage Loan Schedule attached to the Pooling and Servicing Agreement and
heretofore secured by the Mortgaged Properties identified on the Mortgage
Loan Schedule by the following names:____________________
____________________
Reference is made to the Pooling and Servicing Agreement described
above. Capitalized terms used but not defined herein have the meanings assigned
to such terms in the Pooling and Servicing Agreement. [Note: all terms in this
Certification must be conformed to terms used in the Pooling and Servicing
Agreement]
As Master Servicer under the Pooling and Servicing Agreement, we
hereby:
(1) Notify you that the Mortgagor has consummated a defeasance of
the Mortgage Loan pursuant to the terms of the Mortgage Loan, of the type
checked below:
_____ a full defeasance of the entire principal balance of the
Mortgage Loan; or
_____ a partial defeasance of a portion of the principal balance of
the Mortgage Loan that represents and, an allocated loan amount of $____________
or _______% of the entire principal balance of the Mortgage Loan;
(2) Certify that each of the following is true, subject to those
exceptions set forth with explanatory notes on Exhibit A hereto, which
exceptions the Master Servicer has determined, consistent with the Servicing
Standard, will have no material adverse effect on the Mortgage Loan or the
defeasance transaction:
(A) The Mortgage Loan Documents permit the defeasance,
and the terms and conditions for defeasance specified therein
were satisfied in all material respects in completing the
defeasance.
(B) The defeasance was consummated on __________, 20__.
(C) The defeasance collateral consists of securities
that (i) constitute "government securities" as defined in
Section 2(a)(16) of the Investment Company Act of 1940 as
amended (15 U.S.C. 80A1), (ii) are listed as "Qualified
Investments for 'AAA' Financings" under Paragraphs 1, 2 or 3
of "Cash Flow Approach" in Standard & Poor's Public Finance
Criteria 2000, as amended to the date of the defeasance, (iii)
are rated "AAA" by Standard & Poor's, (iv) if they include a
principal obligation, the principal due at maturity cannot
vary or change, and (v) are not subject to prepayment, call or
early redemption.
(D) The Master Servicer received an opinion of counsel
(from counsel approved by the Master Servicer in accordance
with the Servicing Standard) that the defeasance will not
result in an Adverse REMIC event.
(E) The Master Servicer determined that the defeasance
collateral will be owned by an entity (the "Defeasance
Obligor") that is a Single-Purpose Entity (as defined in
Standard & Poor's Structured Finance Ratings Real Estate
Finance Criteria, as amended to the date of the defeasance
(the "S&P Criteria")) as of the date of the defeasance, and
after the defeasance owns no assets other than the defeasance
collateral and real property securing Mortgage Loans included
in the pool.
(F) The Master Servicer received written confirmation of
the crediting of the defeasance collateral to an Eligible
Account (as defined in the S&P Criteria) in the name of the
Defeasance Obligor, which account is maintained as a
securities account by a securities intermediary and has been
pledged to the Trustee.
(G) The agreements executed in connection with the
defeasance (i) grant control of the pledged securities account
to the trustee, (ii) require the securities intermediary to
make the scheduled payments on the Mortgage Loan from the
proceeds of the defeasance collateral directly to the Master
Servicer's collection account in the amounts and on the dates
specified in the Mortgage Loan Documents or, in a partial
defeasance, the portion of such scheduled payments attributed
to the allocated loan amount for the real property defeased,
increased by any defeasance premium specified in the Mortgage
Loan Documents (the "Scheduled Payments"), (iii) permit
reinvestment of proceeds of the defeasance collateral only in
Permitted Investments (as defined in the S&P Criteria), (iv)
permit release of surplus defeasance collateral and earnings
on reinvestment from the pledged securities account only after
the Mortgage Loan has been paid in full, if any such release
is permitted, (v) prohibit transfers by the Defeasance Obligor
of the Defeasance Collateral and subordinate liens against the
defeasance collateral, and (vi) provide for payment from
sources other than the defeasance collateral or other assets
of the Defeasance Obligor of all fees and expenses of the
securities intermediary for administering the defeasance and
the securities account and all fees and expenses of
maintaining the existence of the Defeasance Obligor.
(H) The Master Servicer received written confirmation
from a firm of independent certified public accountants, who
were approved by the Master Servicer in accordance with the
Servicing Standard stating that (i) revenues from the
defeasance collateral (without taking into account any
earnings on reinvestment of such revenues) will be sufficient
to timely pay each of the Scheduled Payments after the
defeasance including the payment in full of the Mortgage Loan
(or the allocated portion thereof in connection with a partial
defeasance) on its Maturity Date (or, in the case of an ARD
Loan, on its Anticipated Repayment Date), (ii) the revenues
received in any month from the defeasance collateral will be
applied to make Scheduled Payments within four (4) months
after the date of receipt, and (iii) interest income from the
defeasance collateral to the Defeasance Obligor in any
calendar or fiscal year will not exceed such Defeasance
Obligor's interest expense for the Mortgage Loan (or the
allocated portion thereof in a partial defeasance) for such
year.
(I) The Mortgage Loan is not among the ten (10) largest
loans in the pool. The entire principal balance of the
Mortgage Loan as of the date of defeasance was less than both
$35,000,000 and 5.0% of pool balance, which is less than 5.0%
of the aggregate Certificate Balance of the Certificates as of
the date of the most recent Paying Agent's Monthly
Certificateholder Report received by us (the "Current
Report").
(J) The defeasance described herein, together with all
prior and simultaneous defeasances of Mortgage Loans, brings
the total of all fully and partially defeased Mortgage Loans
to $__________________, which is _____% of the Aggregate
Certificate Balance of the Certificates as of the date of the
Current Report.
(3) Certify that Exhibit B hereto is a list of the material
agreements, instruments, organizational documents for the Defeasance Obligor,
and opinions of counsel and independent accountants executed and delivered in
connection with the defeasance.
(4) Certify that the individual under whose hand the Master Servicer
has caused this Notice and Certification to be executed did constitute a
Servicing Officer as of the date of the defeasance described above.
(5) Agree to provide copies of all items listed in Exhibit B to you
upon request.
IN WITNESS WHEREOF, the Master Servicer has caused this Notice and
Certification to be executed as of the date captioned above.
BANK OF AMERICA, NATIONAL
ASSOCIATION
By:____________________________________
Name:
Title:
EXHIBIT K
FORM OF CERTIFICATION TO BE PROVIDED WITH FORM 00-X
Xxxx xx Xxxxxxx Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates,
Series 2007-2 (the "Trust")
I, [identify the certifying individual], certify that:
(1) I have reviewed this annual report on Form 10-K, and all reports
on Form 10-D required to be filed in respect of the period covered by this
report on Form 10-K (the "Exchange Act Periodic Reports"), of the Trust
formed pursuant to the Pooling and Servicing Agreement (the ("Pooling and
Servicing Agreement") dated as of June 1, 2007 among Banc of America
Commercial Mortgage Inc., as Depositor, Bank of America, National
Association, as Master Servicer, LNR Partners, Inc., as Special Servicer,
and Xxxxx Fargo Bank, N.A., as Trustee and REMIC Administrator;
(2) Based on my knowledge, the Exchange Act Periodic Reports, taken
as a whole, do not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements made, in light
of the circumstances under which such statements were made, not misleading
as of the last day of the period covered by this annual report;
(3) Based on my knowledge, all of the distribution, servicing and
other information required to be provided under Form 10-D for the period
covered by this report is included in Exchange Act Periodic Reports;
(4) Based on my knowledge and the servicer compliance statements
required in this report under Item 1123 of Regulation AB, and except as
disclosed in the Exchange Act Periodic Report, the servicers have
fulfilled their obligations under the Pooling and Servicing Agreement;
(5) All of the reports on assessment of compliance with servicing
criteria for asset-backed securities and their related attestation reports
on assessment of compliance with servicing criteria for asset-backed
securities required to be included in this report in accordance with Item
1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 have been
included as an exhibit to this report, except as otherwise disclosed in
this report. Any material instances of noncompliance described in such
reports have been disclosed in this report on Form 10-K; and
(6) I have disclosed to the Trust's certified public accountants all
significant deficiencies relating to the Master Servicer's or Special
Servicer's compliance with the minimum servicing standards in accordance
with a review conducted in compliance with the Uniform Single Attestation
Program for Mortgage Bankers or similar standard as set forth in the
Pooling and Servicing Agreement.
In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties: ________, as
Special Servicer, ________, as Trustee and REMIC Administrator, ________, as
Sub-Servicer, ________, and as Sub-Servicer, ________.
Date: _________________________
_______________________________
[Signature]
[Title]
EXHIBIT L
FORM OF CERTIFICATION TO BE
PROVIDED TO DEPOSITOR
Re: Banc of America Commercial Mortgage Trust 2007-2 (the "Trust"),
Commercial Mortgage Pass-Through Certificates, Series 2007-2
I, [identify the certifying individual], a[n] [title] of [identify
name of company] on behalf of [identify name of company], as [Trustee/Master
Servicer/Special Servicer] under that certain Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement") dated as of June 1, 2007, among Banc of
America Commercial Mortgage Inc., as Depositor, Bank of America, National
Association, as Master Servicer, LNR Partners, Inc., as Special Servicer, and
Xxxxx Fargo Bank, N.A., as Trustee and REMIC Administrator, certify to [identify
the individual signing the Xxxxxxxx-Xxxxx Certification], the Depositor and its
partners, representatives, affiliates, members, managers, directors, officers,
employees and agents, to the extent that the following information is within our
normal area of responsibilities and duties under the Pooling and Servicing
Agreement, and with the knowledge and intent that they will rely upon this
certification, that:
(1) [To be certified by the Trustee] [I have reviewed the
information provided by the Master Servicer and Special Servicer for
inclusion in the annual report on Form 10-K relating to the Trust for the
fiscal year [___] (the "Annual Report"), and all reports provided for
inclusion on Form 8-K containing statements to certificateholders filed in
respect of periods included in the year covered by that Annual Report
(collectively with the Annual Reports, the "Reports"), of the Trust;]
(2) [To be certified by the Trustee] [To the best of my knowledge,
the information in the Reports, to the extent prepared by the [Trustee]
(but not including any information provided to the [Trustee] by the Master
Servicer or Special Servicer, other than to the extent that such
information has been aggregated or manipulated by [Trustee]), taken as a
whole, does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in light of
the circumstances under which such statements were made, not misleading as
of the last day of the period covered by the Annual Report;]
(3) [To be certified by the Trustee] [To the best of my knowledge,
the distribution or servicing information required to be provided to the
Trustee by the Master Servicer and the Special Servicer under the Pooling
and Servicing Agreement for inclusion in the Reports is included in the
Reports;]
(4) [To be certified by the Master Servicer and Special Servicer]
[Based on my knowledge, the servicing information required to be provided
under Section 3.15 of the Pooling and Servicing Agreement is included in
such servicing reports delivered by the Special Servicer to the
Depositor;]
(5) [To be certified by the Master Servicer and Special Servicer]
[Based on my knowledge, the servicing information delivered by the Special
Servicer to the Trustee for inclusion in the Reports, taken as a whole,
does not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading with
respect to the period covered by such Reports;]
(6) [To be certified by the Master Servicer and Special Servicer] [I
am responsible for reviewing the activities performed by the Special
Servicer under the Pooling and Servicing Agreement and based upon my
knowledge and the annual compliance reviews conducted in preparing the
servicer compliance statements required in such reports under Item 1123 of
Regulation AB with respect to the Special Servicer, and except as
disclosed in the compliance certificate delivered by the Special Servicer
under Section 11.09 of the Pooling and Servicing Agreement, the Special
Servicer has fulfilled its obligations under the Pooling and Servicing
Agreement in all material respects;]
(7) [To be certified by the Master Servicer and Special Servicer]
[The accountant's statement delivered pursuant to Section 11.11 of the
Pooling and Servicing Agreement discloses all significant deficiencies
relating to the Special Servicer's compliance with the minimum servicing
standards based upon the report provided by an independent public
accountant, after conducting a review in compliance with the Uniform
Single Attestation Program for Mortgage Bankers or similar procedure, as
set forth in the Pooling and Servicing Agreement;]
(8) [To be certified by the Master Servicer and Special Servicer] [I
am responsible for reviewing the activities performed by [the Master
Servicer] [the Special Servicer] under the Pooling and Servicing Agreement
and based upon my knowledge and the annual compliance review conducted in
preparing the servicer compliance statement provided by the Master
Servicer or Special Servicer, as the case may be, required under the
Pooling and Servicing Agreement, and except as disclosed in such
compliance statement, [the Master Servicer] [the Special Servicer] has
fulfilled its obligations under the Pooling and Servicing Agreement in all
material respects, including the provision of all Reports required to be
submitted to the Trustee thereunder, and that, to the knowledge of [the
Master Servicer] [the Special Servicer], based upon the review required
under the Pooling and Servicing Agreement with respect to [the Master
Servicer] [the Special Servicer], such reports do not contain any material
misstatements or omissions; and]
(9) [To be certified by the Master Servicer and Special Servicer]
[All of the reports on assessment of compliance with servicing criteria
for asset-backed securities and their related attestation reports on
assessment of compliance with servicing criteria for asset-backed
securities with respect to the Special Servicer required to be delivered
by the Special Servicer under the Pooling and Servicing Agreement in
accordance with Item 1122 of Regulation AB and Exchange Act Rules 13a-18
and 15d-18 have been delivered pursuant to the terms of the Pooling and
Servicing Agreement. Any material instances of noncompliance with the
servicing criteria have been disclosed in such reports.]
Date: _________________________
[NAME OF COMPANY]
_______________________________
[Signature]
[Title]
EXHIBIT M
FORM OF CONFIDENTIALITY AGREEMENT
[Date]
Bank of America, National Association
NC1-026-06-01
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Banc of America Commercial Mortgage Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-2
Re: Information Regarding Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-2
Ladies and Gentlemen:
In connection with the Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-2 (the
"Certificates"), we acknowledge that we will be furnished by the
[Servicer][Special Servicer] (and may have been previously furnished) with
certain information (the "Information"), provided by Xxxxx Fargo Bank, N.A. , as
trustee (the "Trustee"), Banc of America Commercial Mortgage Inc., as Depositor
(the "Depositor") and the borrowers under certain of the Mortgage Loans. For the
purposes of this letter agreement (this "Agreement"), "Representative" of a
Person refers to such Person's directors, officers, employees, and agents; and
"Person" refers to any individual, group or entity.
In connection with and in consideration of our being provided with
Information, we hereby acknowledge and agree that we are requesting and will use
the Information solely for purposes of making investment decisions with respect
to the above-referenced Certificates and will not disclose such Information to
any other Person or entity unless required to do so by law; provided such
Information may be disclosed to the auditors and regulators of the undersigned
or to any person or entity that is contemplating the purchase of any Certificate
held by the undersigned or of an interest therein, but only if such person or
entity confirms in writing such contemplation of a prospective ownership
interest and agrees in writing to keep such Information confidential.
This Agreement shall not apply to any of the Information which: (i)
is or becomes generally available and known to the public other than as a result
of a disclosure directly or indirectly by us or any of our Representatives; (ii)
becomes lawfully available to us on a non-confidential basis from a source other
than you or one of your Representatives, which source is not bound by a
contractual or other obligation of confidentiality to any Person; or (iii) was
lawfully known to us on a non-confidential basis prior to its disclosure to us
by you.
Notwithstanding anything to the contrary contained herein, we (and
each of our employees, representative or other agents) may disclose to any and
all persons, without limitation of any kind, the federal income tax treatment
and tax structure of the above-referenced Certificates, any fact relevant to
understanding the federal tax treatment or tax structure of the above-referenced
Certificates, and all materials of any kind (including opinions or other tax
analysis) relating to such federal tax treatment or tax structure other than the
identity of the Depositor and information that would permit the identification
of the Depositor.
Capitalized terms used but not defined herein shall have the meaning
assigned thereto in that certain Pooling and Servicing Agreement, dated as of
June 1, 2007, by and among the Depositor, the Trustee, Bank of America, National
Association, as Servicer (the "Servicer") and LNR Partners, Inc., as Special
Servicer (the "Special Servicer").
The undersigned shall be fully liable for any breach of this
agreement by itself or any of its Representatives and shall indemnify the
Depositor, the Servicer, the Special Servicer, the Trustee and the Trust Fund
for any loss, liability or expense incurred thereby with respect to any such
breach by the undersigned or any of its Representatives.
This Agreement, when signed by us, will constitute our agreement
with respect to the subject matter contained herein.
Very truly yours,
[NAME OF ENTITY]
By:______________________________
Name:
Title:
EXHIBIT N
FORM OF REGULATION S CERTIFICATE
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services (CMBS) - Banc of America
Commercial Mortgage Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-2
Re: Transfer of Banc of America Commercial Mortgage Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-2, Class [__ ]
Ladies and Gentlemen:
Reference is made to the Pooling and Servicing Agreement, dated as
of June 1, 2007 (the "Pooling and Servicing Agreement"), by and among Banc of
America Commercial Mortgage Inc., as Depositor (the "Depositor"), Bank of
America, National Association, as Master Servicer (the "Master Servicer"), LNR
Partners, Inc., as Special Servicer (the "Special Servicer"), and Xxxxx Fargo
Bank, N.A., as Trustee (the "Trustee"). Capitalized terms used but not defined
herein shall have the meanings ascribed to them in the Pooling and Servicing
Agreement.
This letter relates to US $[__________] aggregate Certificate
Principal Amount of Certificates (the "Certificates") which are held in the form
of the Domestic Global Certificate (CUSIP No. ) with the Depository in the name
of [insert name of transferor] (the "Transferor"). The Transferor has requested
a transfer of such beneficial interest in the Certificates for an interest in
the Regulation S Global Certificate (ISIN No. ).
In connection with such request, and in respect of such
Certificates, the Transferor does hereby certify that such transfer has been
effected in accordance with the transfer restrictions set forth in the Pooling
and Servicing Agreement and the Certificates and (i) with respect to transfers
made in accordance with Regulation S under the Securities Act of 1933, as
amended (the "Securities Act"), the Transferor does hereby certify that:
(1) the offer of the Certificates was not made to a person in the
United States,
[(2) at the time the buy order was originated, the Transferee was
outside the United States or the Transferor and any person acting on its behalf
reasonably believed that the Transferee was outside the United States,]*
[2. the transaction was executed in, on or through the facilities of
a designated offshore securities market and neither the undersigned nor any
person acting on its behalf knows that the transaction was pre-arranged with a
buyer in the United States,]*
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable, and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act;
or (ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Transferor does hereby certify that the Certificates that
are being transferred are not "restricted securities" as defined in Rule 144
under the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Servicer and the
Special Servicer.
[Insert Name of Transferor]
By:______________________________
Name:
Title:
Dated: _________ __, __
----------------------
* Insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
EXHIBIT O
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM
DOMESTIC GLOBAL CERTIFICATE TO REGULATION S
GLOBAL CERTIFICATE DURING THE RESTRICTED PERIOD
(Exchanges or transfers pursuant to
Section 5.02(d) of the Pooling and Servicing Agreement)
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services (CMBS) - Banc of America
Commercial Mortgage Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-2
Re: Transfer of Banc of America Commercial Mortgage Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-2, Class [__]
Reference is hereby made to the Pooling and Servicing Agreement,
dated as of June 1, 2007 (the "Pooling and Servicing Agreement"), by and among
Banc of America Commercial Mortgage Inc., as Depositor (the "Depositor"), Bank
of America, National Association, as Master Servicer (the "Master Servicer"),
LNR Partners, Inc., as Special Servicer (the "Special Servicer"), and Xxxxx
Fargo Bank, N.A., as Trustee (the "Trustee"). Capitalized terms used but not
defined herein shall have the meanings given to them in the Pooling and
Servicing Agreement.
This letter relates to US $[__________] aggregate Certificate
Principal Amount of Certificates (the "Certificates") which are held in the form
of the Domestic Global Certificate (CUSIP No. _____________) with the Depository
in the name of [insert name of transferor] (the "Transferor"). The Transferor
has requested a transfer of such beneficial interest for an interest in the
Regulation S Global Certificate (CUSIP No. ____________) to be held with
[Euroclear] [Clearstream]* (ISIN No. _____________) through the Depository.
In connection with such request and in respect of such Certificates,
the Transferor does hereby certify that such transfer has been effected in
accordance with the transfer restrictions set forth in the Pooling and Servicing
Agreement and pursuant to and in accordance with Regulation S under the
Securities Act of 1933, as amended (the "Securities Act"), and accordingly the
Transferor does hereby certify that:
(1) the offer of the Certificates was not made to a person in the
United States,
[(2)_at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any persons acting on its behalf
reasonably believed that the transferee was outside the United States,]**
[2. the transaction was executed in, on or through the facilities of
a designated offshore securities market and neither the Transferor nor any
person acting on its behalf knows that the transaction was prearranged with a
buyer in the United States,]
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable, and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Servicer and the
Special Servicer.
[Insert Name of Transferor]
By:______________________________
Name:
Title:
Dated: _____________, ___
-----------------------
** Insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
EXHIBIT P
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM DOMESTIC
GLOBAL CERTIFICATE TO REGULATION S GLOBAL
CERTIFICATE AFTER THE RESTRICTED PERIOD
(Exchange or transfers pursuant to
Section 5.02(d) of the Pooling and Servicing Agreement)
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services (CMBS) - Banc of America
Commercial Mortgage Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-2
Re: Transfer of Banc of America Commercial Mortgage Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-2, Class [__ ]
Reference is hereby made to the Pooling and Servicing Agreement,
dated as of June 1, 2007 (the "Pooling and Servicing Agreement"), by and among
Banc of America Commercial Mortgage Inc., as Depositor (the "Depositor"), Bank
of America, National Association, as Master Servicer (the "Master Servicer"),
LNR Partners, Inc., as Special Servicer (the "Special Servicer"), and Xxxxx
Fargo Bank, N.A., as Trustee (the "Trustee"). Capitalized terms used but not
defined herein shall have the meanings given to them in the Pooling and
Servicing Agreement.
This letter relates to US $[__________] aggregate Certificate
Principal Amount of Certificates (the "Certificates") which are held in the form
of the Domestic Global Certificate (CUSIP No. _____) with the Depository in the
name of [insert name of transferor] (the "Transferor"). The Transferor has
requested a transfer of such beneficial interest in the Certificates for an
interest in the Regulation S Global Certificate (ISIN No. _____).
In connection with such request, and in respect of such
Certificates, the Transferor does hereby certify that such transfer has been
effected in accordance with the transfer restrictions set forth in the Pooling
and Servicing Agreement and, (i) with respect to transfers made in reliance on
Regulation S under the Securities Act of 1933, as amended (the "Securities
Act"), the Transferor does hereby certify that:
(1) the offer of the Certificates was not made to a person in the
United States,
[(2) at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on its behalf
reasonably believed that the transferee was outside the United States,]
(3) the transaction was executed in, on or through the facilities of
a designated offshore securities market and neither the Transferor nor any
person acting on its behalf knows that the transaction was prearranged with a
buyer in the United States,]*
(4) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable, and
(5) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act;
or (ii) with respect to transfers made in reliance on Rule 144 under
the Securities Act, the Transferor does hereby certify that the Certificates
that are being transferred are not "restricted securities" as defined in Rule
144 under the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Servicer and the
Special Servicer.
[Insert Name of Transferor]
By:______________________________
Name:
Title:
Dated: ____ __, ____
EXHIBIT Q
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM REGULATION S GLOBAL
CERTIFICATE TO DOMESTIC GLOBAL CERTIFICATE
(Exchange or transfers pursuant to
Section 5.02(d) of the Pooling and Servicing Agreement)
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services (CMBS) - Banc of America
Commercial Mortgage Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-2
Re: Transfer of Banc of America Commercial Mortgage Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-2, Class [__ ]
Reference is hereby made to the Pooling and Servicing Agreement,
dated as of June 1, 2007 (the "Pooling and Servicing Agreement"), by and among
Banc of America Commercial Mortgage Inc., as Depositor (the "Depositor"), Bank
of America, National Association, as Master Servicer (the "Master Servicer"),
LNR Partners, Inc., as Special Servicer (the "Special Servicer"), and Xxxxx
Fargo Bank, N.A., as Trustee (the "Trustee"). Capitalized terms used but not
defined herein shall have the meanings given to them in the Pooling and
Servicing Agreement.
This letter relates to US $[__________] aggregate Certificate
Principal Amount of Certificates (the "Certificates") which are held in the form
of the Regulation S Global Certificate (CUSIP No. __________) with [Euroclear]
[Clearstream]* (ISIN No. __________) through the Depository in the name of
[insert name of transferor] (the "Transferor"). The Transferor has requested a
transfer of such beneficial interest in the Certificates for an interest in the
Domestic Global Certificate (CUSIP No. __________).
In connection with such request, and in respect of such
Certificates, the Transferor does hereby certify that such Certificates are
being transferred in accordance with (i) the transfer restrictions set forth in
the Pooling and Servicing Agreement and (ii) Rule 144A under the Securities Act
to a transferee that the Transferor reasonably believes is purchasing the
Certificates for its own account with respect to which the transferee exercises
sole investment discretion and the transferee and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A, in each case in
a transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state or other jurisdiction of the United
States.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Servicer, the
Special Servicer and Banc of America Securities LLC, the Initial Purchasers of
the offering of the Certificates.
[Insert Name of Transferor]
By:______________________________
Name:
Title:
Dated: ____ __, ____
SCHEDULE I
Mortgage Loan Schedule
Sequence Loan Number Loan Seller Property Name
-------- ----------- --------------- -------------------------------------------------------------------------
1 51006 BSCMI Beacon Seattle & DC Portfolio (Rollup)
1.1 00000 XXXXX Xxxxxx Xxxxxx
1.2 51006 BSCMI Polk & Xxxxxx
1.3 51006 BSCMI Xxxxx Fargo Center
1.4 51006 BSCMI Lafayette Center
1.5 51006 BSCMI Xxxx Xxxxx Complex
1.6 51006 BSCMI Key Center
1.7 51006 BSCMI Xxxxxx Xxxxx
0.0 00000 XXXXX Xxxx Center Bellevue
1.9 51006 BSCMI Plaza Center
1.10 51006 BSCMI 0000 Xxxxx Xxxx Xxxx Xxxxx
1.11 51006 BSCMI American Center
1.12 51006 BSCMI Eastgate Office Park
1.13 51006 BSCMI Liberty Place
1.14 51006 BSCMI Lincoln Executive Center
1.15 51006 BSCMI 00000 Xxxxxx Xxxxx Xxxx
1.16 51006 BSCMI Army and Navy Building
1.17 51006 BSCMI Plaza East
1.18 51006 BSCMI 0000 Xxxxx Xxxxxxxxxxx Xxxxxx
1.19 51006 BSCMI Xxxxxx Xxxx Xxxxxx
0.00 00000 XXXXX Xxxxxxxxxx Mutual Tower
2 0000000 Bank of America Xxx Xxxx Xxxxxx
0 0000000 Xxxx xx Xxxxxxx 000 Xxxxxxxxx Xxxxxx
4 0000000 Bank of America Xxxxxx Crossing
5 0000000 Bank of America Mall of Acadiana
6 0000000 Bank of America Connecticut Financial Center
7 59712 Bank of America Valley River Center
8 0000000 Bank of America 000 Xxxx 00xx Xxxxxx
9 0000000 Bank of America Xxxxxxxx Xxxxxx Xxxxx
00 0000000 Bank of America 00 Xxxxx Xxxxx Xxxxxx
11 0000000 Bank of America Xxxxxxx Xxxxxxxx
00 00000 XXXXX Xxxxxxxxxx Industrial Portfolio (Rollup)
12.1 48595 BSCMI North Haven Distribution Center
12.2 48595 BSCMI Cheshire Commerce Center
13 0000000 Bank of America Fayette Pavilion III & IV
14 49394 BSCMI Palm Beach Gardens Marriott
15 0000000 Bank of America Xxxxxxxx Xxxxxxx
00 00000 XXXXX Xxxxxx Student Housing Portfolio (Rollup)
16.1 49150 BSCMI The Castillian
16.2 49150 BSCMI Texan West Campus
17 0000000 Bank of America Plaza at Fayette
18 0000000 Bank of America Sarasota Pavilion
19 0000000 Bank of America Pleasant Hill
20 0000000 Bank of America Harlem River Yard
21 0000000 Bank of America River Ridge
22 0000000 Bank of America Venture Pointe
Rollup BSCMI Rite Aid & Walgreen's Crossed Portfolio
23 49148 BSCMI Walgreen's Guaynabo & Eckerd XxXxxxxxx (Rollup)
23.1 49148 BSCMI Walgreen's Xxxxxxxx
00.0 00000 XXXXX Xxxxxx XxXxxxxxx
24 49754 BSCMI Walgreen's Carolina
25 49092 BSCMI Rite Aid - Coldwater and Shelby (Rollup)
25.1 49092 BSCMI Rite Aid - Shelby
25.2 49092 BSCMI Rite Aid - Coldwater
26 0000000 Bank of America The Xxxx at Salem Station
27 0000000 Bank of America West Park Industrial Portfolio (Rollup)
27.1 0000000 Bank of America Xxxx Xxxx Xxxxxxxxxx Xxxxxxxxx - Xxxx Xxxx XI
27.2 0000000 Bank of America Xxxx Xxxx Xxxxxxxxxx Xxxxxxxxx - Xxxx Xxxx VIII
27.3 0000000 Bank of America Xxxx Xxxx Xxxxxxxxxx Xxxxxxxxx - Xxxx Xxxx III
27.4 0000000 Bank of America Xxxx Xxxx Xxxxxxxxxx Xxxxxxxxx - Xxxx Xxxx VI
27.5 0000000 Bank of America Xxxx Xxxx Xxxxxxxxxx Xxxxxxxxx - Xxxx Xxxx VII
27.6 0000000 Bank of America Xxxx Xxxx Xxxxxxxxxx Xxxxxxxxx - Xxxx Xxxx IV
27.7 0000000 Bank of America Xxxx Xxxx Xxxxxxxxxx Xxxxxxxxx - Xxxx Xxxx V
27.8 0000000 Bank of America Xxxx Xxxx Xxxxxxxxxx Xxxxxxxxx - Xxxx Xxxx I
27.9 0000000 Bank of America Xxxx Xxxx Xxxxxxxxxx Xxxxxxxxx - Xxxx Xxxx II
27.10 0000000 Bank of America Xxxx Xxxx Xxxxxxxxxx Xxxxxxxxx - Xxxx Xxxx X
27.11 0000000 Bank of America Xxxx Xxxx Xxxxxxxxxx Xxxxxxxxx - Xxxx Xxxx IX
28 0000000 Bank of America Fairway Lakes
29 0000000 Bank of America Xxxx Xxxxxxxx
00 00000 Xxxxxxx Xxxxxxx Xxxxxxx Apts-07
31 0000000 Bank of America Sand Lake Corners
32 0000000 Bank of America Buffets Headquarters
33 20951 Bridger North Park Business Park Portfolio 2
34 0000000 Bank of America Grande View Apartments
35 0000000 Bank of America Bakersfield Industrial Portfolio (Rollup)
35.1 0000000 Bank of America Bakersfield Industrial Portfolio - 2309, 2351 and 0000 Xxxx Xxxxxxxx Xxxx
35.2 0000000 Bank of America Bakersfield Industrial Portfolio - 0000 Xxxx Xxxxxxxx Xxxx
35.3 0000000 Bank of America Bakersfield Industrial Portfolio - 6881 and 0000 Xxxxxxxx Xxxxxxxxx
36 0000000 Bank of America City Crossing
37 0000000 Bank of America Xxxxxx Plaza
38 0000000 Bank of America Lakes of Xxxxx Apartments
39 0000000 Bank of America Bent Tree Apartments
40 0000000 Bank of America Columbiana Xxxxxxx XX
00 00000 XXXXX Xxxxxxxxxx Shopping Center
42 0000000 Bank of America Harmony Square Apartments
43 0000000 Bank of America 31 Columbia
44 0000000 Bank of America Xxxx'x Crossing
45 23195 Bridger Holiday Inn Tinton Falls
46 0000000 Bank of America Corona Valley Marketplace
47 0000000 Bank of America DaimlerChrysler Building - Ameriplex at the Portage
48 47941 BSCMI Grand D'Iberville
49 49918 BSCMI Xxxxxxxxxx Xxxxxxxxxx
00 00000 Xxxxxxx Xxxxx Xxxx Apartments
51 49756 BSCMI Parkway Shopping Xxxxxx
00 00000 Xxxxxxx Xxxxx Xxxx Xxxxxxxx Xxxx Portfolio 1
53 0000000 Bank of America Richmond Industrial
54 49799 BSCMI Radisson Phoenix
55 50037 BSCMI Best Western Fort Xxxxx
56 23471 Bridger Lake Park Towers
57 0000000 Bank of America Prince Acaciawood Apartments
58 0000000 Bank of America Simply Self Storage Portfolio (Rollup)
58.1 0000000 Bank of America Simply Self Storage Portfolio - Hawthorn
58.2 0000000 Bank of America Simply Self Storage Portfolio - Xxxxx
58.3 0000000 Bank of America Simply Self Storage Portfolio - West 10th
58.4 0000000 Bank of America Simply Self Storage Portfolio - Zionsville
59 0000000 Bank of America 0000 Xxxxx Xxxxxxxxx
60 0000000 Bank of America Park Place Xxxxx
61 0000000 Bank of America Universal Plaza
62 0000000 Bank of America Xxxxx Store 21
63 23292 Bridger Brookside Villas Apartments
64 0000000 Bank of America Premier Development Portfolio (Rollup)
64.1 0000000 Bank of America Premier Development Portfolio - 000 Xxxxx Xxxxxx
64.2 0000000 Bank of America Premier Development Portfolio - 000 Xxxxxxxxxxx Xxxxxx
64.3 0000000 Bank of America Premier Development Portfolio - 00 Xxxxxx Xxxxx Xxxxxx
64.4 0000000 Bank of America Premier Development Portfolio - 1 Custom House Street
65 0000000 Bank of America North Columbus Crossing
66 49802 BSCMI Xxxxxxxx Xxxxx
00 00000 Xxxxxxx Xxxxxxxxxxx El Monte
68 0000000 Bank of America Parkwood Terrace
69 0000000 Bank of America Residence Inn Marriott Columbus Easton
70 0000000 Bank of America Hill Court Apartments
71 0000000 Bank of America DTI- Chevy Xxxxx Xxxxx Apartments
72 0000000 Bank of America Newtown Business Commons
73 0000000 Bank of America Xxxx Ranch I
74 48225 BSCMI Parkway Chevrolet - Tomball
75 22486 Bridger Echelon
76 0000000 Bank of America Value Store It
77 0000000 Bank of America Remy International World Headquarters
78 0000000 Bank of America Boise Cascade - Florida
79 0000000 Bank of America Xxxxx Store 96
80 0000000 Bank of America Courtyard Marriott Baton Rouge Siegen Lane
81 0000000 Bank of America Xxxxxx Valley Corporate Center
82 0000000 Bank of America DTI- Parkway Circle Apartments
83 49411 BSCMI Travelodge - Xxxxx Xxxxx Xxxxxx
00 00000 Xxxxxxx Xxxxxxx at Oakhurst
85 0000000 Bank of America Xxxxxx Center
86 0000000 Bank of America Ironwood Square Shopping Center
87 20442 Xxxxxxx Xxxxxxx Road Square
88 0000000 Bank of America Best Buy - Burbank, IL
89 0000000 Bank of America Best Western - Xxxxx
90 0000000 Bank of America Daystar Xxxxxxxxxx Xxxxxxx
00 00000 Xxxxxxx Xxxxxxxxxx Professional Building
92 0000000 Bank of America DTI- University Club Apartments
93 22629 Bridger Suburban Lodge - SC
94 0000000 Bank of America Parkview Heights Heights and Meetinghouse Apartments (Rollup)
94.1 0000000 Bank of America Parkview Heights Apartments
94.2 0000000 Bank of America Meetinghouse Apartments
95 22562 Bridger Best Western Xxxxxxxx Suites-Pooler
96 0000000 Bank of America Crossroads at Santa Xxxxx Building #9
97 0000000 Bank of America Royale Apartments
98 0000000 Bank of America XXX-Xxxxxx Xxxxxxxxxx
00 00000 Xxxxxxx Xxxxxxxx Village
100 22705 Bridger Kingwood Forest
101 0000000 Bank of America Xxx Xxxxx Apartments
102 0000000 Bank of America Social Security Administration Building
103 0000000 Bank of America Main Street Village - Matawan, NJ
104 49504 BSCMI Xxxxxxx Xxxxxxxx Xxxxxx
000 00000 Xxxxxxx Xxxxx Montreal Plaza
106 22242 Bridger Seven Oaks Shopping Center
107 0000000 Bank of America DTI- Scandia Apartments
108 0000000 Bank of America Xxxxx Store 47
109 0000000 Bank of America Clarion Hotel
110 22168 Bridger Xxxxxxx Xxxxxxx Xxxxxxxxxx
000 00000 Xxxxxxx Xxxxxx Apartments
112 0000000 Bank of America DTI- Baywood Apartments
113 21606 Bridger Holiday Inn Express - Idaho Falls
114 47852 BSCMI 0000 Xxxxxxxxxxx Xxxxxx
115 22718 Xxxxxxx Xxxxxx Creek Apartments
116 0000000 Bank of America Lobill's Store 331
117 0000000 Bank of America DTI- Gables Apartments
118 0000000 Bank of America Xxxxx Store 73
119 0000000 Bank of America Walgreen's - Xxxxxxx, MI
120 0000000 Bank of America 000-000 Xxxx 00xx Xxxxxx
121 19409 Bridger Sleep Inn - Xxxxxxx
122 21067 Bridger Xxxxxx Xxxxx Xxxxxx Xxxxxxxx
000 00000 Xxxxxxx Xxxxxxxxxx Lot 1
124 0000000 Bank of America BofA Ground Lease - LaSalle & Grand
125 21292 Bridger Comfort Inn - Gloucester
126 0000000 Bank of America DTI- Xxxxxx Pond Apartments
127 0000000 Bank of America Xxxxxxxx Xxxx Xxxxxx Xxxxxxxx
000 00000 Xxxxxxx Xxxx Street Crossing
129 0000000 Bank of America Lobill's Store 329
130 20954 Xxxxxxx Xxxxxxxxxxx Xxxxxx
000 00000 Xxxxxxx Xxxxxx Self Storage
132 0000000 Bank of America Xxxx Estates
133 21605 Bridger Country Inn & Suites Bountiful
134 0000000 Bank of America Valley Mall Frontage
135 22722 Xxxxxxx Xxxx Xxxxxx Xxxxxxxxxx
000 00000 Xxxxxxx Xxxxxxxxx - Xxx Xxxxx
137 49974 BSCMI Xxxxxx - Xxxxxxx Street
138 0000000 Bank of America Xxxxxx Xxxxxxx
000 00000 Xxxxxxx Xxxxx Xxxxx Xxxxxxxx Xxxxxx
000 00000 Xxxxxxx 0000 Xxxxxxxxx Xxxx
141 50269 BSCMI Rite Aid - McKeesport
142 22568 Bridger Best Western Hotel - Vancouver
143 21443 Bridger Everwood Professional Plaza
144 0000000 Bank of America DTI- Paper Moon Apartments
145 20447 Bridger Comfort Suites Shenandoah
146 0000000 Bank of America International Filing Company
147 22214 Bridger Briarwyck Apartments
148 0000000 Bank of America DTI- San Xxxxxxx Square Apartments
149 49410 BSCMI Super 0 - Xxxxx Xxxxx Xxxxxx
000 00000 Xxxxxxx Live Oak Retail
151 22141 Bridger Holiday Inn Express Champion
152 0000000 Bank of America Apollo Beach Mini Storage
153 22210 Bridger Bank Lane Apartments-Retail
154 0000000 Bank of America Lobill's Store 343
155 21666 Bridger Pepper Road Medical Office
156 22420 Xxxxxxx Xxxxxx Hilltop Business Park
157 22724 Bridger Mill Creek Apartments
158 0000000 Bank of America The Homestead
159 0000000 Bank of America Walgreens - North Hollywood, CA
160 21949 Xxxxxxx Xxxxxx Xxxx Business Center
161 22552 Bridger 000 Xxxxx 111
162 12731 Bridger Ramada Inn - Savannah
163 0000000 Bank of America Orchard and Xxxxxx Apartments
164 22675 Bridger Hearthstone Tumwater
165 22364 Bridger Briarcrest Shopping Xxxxxx
000 00000 Xxxxxxx Xxxxxxx Xxxxxxx XXX-XX
167 0000000 Bank of America OfficeMax - Porterville, CA
168 22126 Bridger Office Depot
169 19727 Bridger Staples Office Xxxxxxxx
000 00000 Xxxxxxx Xxxxxxx at Tappahannock
171 22599 Bridger Stars & Stripes Storage
172 0000000 Bank of America Xxxxxxx Xxxxxx Xxxxxxxxxx
000 00000 Xxxxxxx Xxxxxxx Xxxxxxxxx Storage
174 0000000 Bank of America DTI- Hillside Apartments
175 22239 Bridger Park Terrace Apartments
176 21919 Xxxxxxx Xxxxx Street Warehouse
177 0000000 Bank of America University Courtyard Apartments
178 0000000 Bank of America Lobill's Store 326
179 0000000 Bank of America Van Buren Retail Center
180 0000000 Bank of America Solana Beach Retail
Totals
Sequence Street Address
-------- -----------------------------------------------------------------------------------------------------------
1 Various
1.1 701 & 000 Xxxxxxxxxxxx Xxxxxx, XX
1.2 0000 X Xxxxx Xxxxxx & 0000 Xxxxxxx Xxxxx
1.3 000 Xxxxx Xxxxxx
1.4 0000 00xx Xxxxxx XX; 0000 00xx Xxxxxx, XX; 0000 00xx Xxxxxx, XX
1.5 0000 Xxxxxxxxxx Xxxxx; 0000 Xxxxxxxxxx Xxxxx; 0000 Xxxxxxxxxx Xxxxx
1.6 000 000xx Xxxxxx XX
1.7 3060 - 0000 000xx Xxxxxx XX
1.8 000 000xx Xxxxxx XX
1.9 10800 - 10900 NE 0xx Xxxxxx
1.10 0000 Xxxxx Xxxx Xxxx Xxxxx
1.11 8300 & 0000 Xxxxx Xxxxxxxxx
1.12 00000 XX 00xx Xxxxx
1.13 000 0xx Xxxxxx, XX
1.14 0000 000xx Xxxxx XX & 0000 000xx Xxxxx SE, 00000 XX Xxxxxxxx Xxx, 0000 000xx Xxxxx XX & 0000 000xx Xxxxx XX
1.15 00000 Xxxxxx Xxxxx Xxxx
1.16 0000 X Xxxxxx, XX
1.17 00000 XX 0xx Xxxxxx
1.18 0000 Xxxxx 00xx Xxxxxx
1.19 00000 Xxxxxxx Xxxxx
1.20 0000 Xxxxx Xxxxxx
2 One Xxxx Xxxxxx
0 000 Xxxxxxxxx Xxxxxx
0 0000 Xxxx and Xxxxxxx Xxxxxxxxx
0 0000 Xxxxxxxx Xxxxxx
6 000 Xxxxxx Xxxxxx
7 293 Valley River Center
8 000 Xxxx 00xx Xxxxxx
9 1205, 1225, 1305 and 0000 Xxxxxxxx Xxxxxx
10 00 Xxxxx Xxxxx Xxxxxx
11 000 Xxxxxxx Xxxx Xxxxxxx Xxxxxxx Xxxxxxxxx
12 Various
12.1 000 Xxxxxxxxx Xxxxxx
12.2 000 Xxxx Xxxxxxx Xxxxxx
13 00-000 Xxxxxxxx Xxxxxxx
14 0000 XXX Xxxx
15 0000-0000 Xxxxxxxx Xxxxxxxx Xxxxxxx
16 Various
16.1 0000 Xxx Xxxxxxx Xxxxxx
16.2 0000 Xxxxxx Xxxxxx
17 3801 Mall Road
18 0000-0000 Xxxxx Xxxxxxx Xxxxx
19 2205 - 0000 Xxxxxxxx Xxxx Xxxx
20 00 Xxxxxxx Xxxxxx
00 X.X. Xxxxxxx 000
00 0000-0000 Venture Drive, 3925-3950 Venture Drive, 0000 Xxxxxxxxx Xxxxxxxxx
Various
23 Various
23.1 Xxxxx Xxxx Xx.00 & Xxxxx Xxxx Xx. 000
23.2 0000 Xxxxxxxxx Xxxx
00 Xxxxx Xxxx Xx. 000 & Xxxxx Xxxx Xxxx
25 Various
25.1 00000 Xxx Xxxx Xxxxxx
25.2 000 Xxxx Xxxxxxx Xxxx
26 00000 Xxxxxxxx Xxxx
27 3320, 3330, 0000 Xxxxxxxx Xxxx; 4102, 4104, 4125, 4171, 4542, 4549, 4551, 0000 XX XxXxxx Xxxx
27.1 0000 XX XxXxxx Xxxx
27.2 0000 XX XxXxxx Xxxx
27.3 0000 Xxxxxxxx Xxxx
27.4 0000 XX XxXxxx Xxxx
27.5 0000 XX XxXxxx Xxxx
27.6 0000 XX XxXxxx Xxxx
27.7 0000 XX XxXxxx Xxxx
27.8 0000 Xxxxxxxx Xxxx
27.9 0000 Xxxxxxxx Xxxx
27.10 0000 XX XxXxxx Xxxx
27.11 0000 XX XxXxxx Xxxx
28 0000 Xxxxxxx Xxxxx Xxxxx
29 000 00xx Xxxxxx, XX
30 0000 Xxxxxxx Xxxxxx
31 8111 to 8445 South Xxxx Xxxxx Parkway
32 0000 Xxxxxxx Xxx
33 0000 Xxxxx 000xx Xxxxxx and 0000 Xxxxx 000xx Xxxxxx
34 000 Xxxxxx Xxxx Xxxxx
35 Various
35.1 2309, 2351 and 0000 Xxxx Xxxxxxxx Xxxx
35.2 0000 Xxxx Xxxxxxxx Xxxx
35.3 6881 and 0000 Xxxxxxxx Xxxxxxxxx
36 0000 Xxxxxx Xxxxxxxxx
37 0000 Xxxxxx Xxxx
38 6060 Rossi Drive
39 0000 Xxxxxxxx Xxxx
40 1005-1009 & 0000-0000 Xxxxx Xxxxxxx
41 000 Xxxx Xxxxxx Xxxx
42 0000 Xxxx Xxxxxx Xxxxxx
00 00 Xxxxxxxx
44 0000-0000 Xxxxx Xxxx
45 000 Xxxx Xxxx
00 0000-0000 Xxxxxxxxx Xxxxxx
00 0000 Xxxxxxxxx Xxxxx
00 00000 Cinema Drive
49 0000 Xxxxxxxxx Xxxxx
50 120 & 000 Xxxx Xxxxxxx Xxxx
51 1471 Xxxxxx Xxxxxx
00 00000 Xxxxx Xxxxxx and 0000 Xxxxx 000xx Xxxxxx
53 845, 855 & 000 Xxxxxx Xxx Xxxxxxx
54 3600 Xxxxx 0xx Xxxxxx
00 0000 Xxxxxxx Xxxxxxx
00 00000 Superior Road
57 0000 X. Xxxx Xxxx
58 Various
58.1 0000 Xxxxxxxx Xxxx Xxxxx
58.2 000 Xxxx Xxxxx Xxxx
58.3 0000 Xxxx 00xx Xxxxxx
58.4 0000 Xxxxxxxxxxxx Xxxxx
59 0000 Xxxxx Xxxxxxxxx
60 1888 & 0000 Xxxxx Xxxxxx
61 0000-0000 Xxxxx Xxxxxxxxxx Xxxxx & 7720-7752 Xxxx Xxxxxxxxxx Xxxxxxxxx
00 00000 Xxxxxxxx Xxxx
63 0000 Xxxxxxxx Xxxxx
64 Various
64.1 000 Xxxxx Xxxxxx
64.2 000 Xxxxxxxxxxx Xxxxxx
64.3 32 Custom House Street
64.4 1 Custom House Street
65 0000 Xxxxxxxx Xxxxxxx
66 0000 Xxxxx Xxxxxxxx Xxxx
67 3830 Santa Xxxxx Xxxxxx
00 0000 Xxxx Xxx Xxxxxxxx Road
69 3999 Easton Xxxx Xxxx
00 000 Xxxx Xxxxx Xxxx
00 0000 Xxxxxxxx Xxxxx
72 105 and 000 Xxxxx Xxxxx
73 9040 Xxxx Xxxxxxxx Xxxx
00 00000 Xxxxx Xxxxxxx 249
75 0000 X. 00xx Xxxxxx
76 0000 XX 0xx Xxxxxx
77 2902 Enterprise Drive, 6512 & 0000 Xxxxxxxxxx Xxxxx
78 0000 Xxxxxxxxx Xxxx
79 000 Xxxxx Xxxxxxxxx Xxxxxx
80 10307 Xxxxx Xxxx Xxxxx
00 00000 Cactus Avenue
82 000 Xxxxxxxxx Xxxxxxx
83 0000 Xxxxx Xxxx
84 0000 Xxxxxx Xxxx
85 0000-0000 Xxxxxx Xxxx
86 208, 212, 000-000 Xxxx Xxxxxxxx Xxxxx
87 00000 Xxxxxxx Xxxx
88 0000 Xxxxx Xxxxxx Xxxxxx
89 000 Xxxxxxxxxx Xxxxxx
90 0000 XX Xxxxxx Xxxxxx
91 0000 000xx Xxxxxx Xxxxx Xxxx
92 2424 Montgomery Xxxx
00 0000 Xxxxxxx Xxxxxx Xxxx
94 Various
94.1 00-000 Xxxxxxxx Xxxxx, 85-87 Xxxxxx Road, 000-000 Xxxxxxx Xxxxxx, 00-00 Xxxx Xxxxx
00.0 00 Xxxxxxxx Xxxxxx
95 000 Xxxxxx Xxxxxx
96 2338, 2342, 2348, 2352, 0000 Xxxxx Xxxxxxx Xxxx
97 65 & 00 Xxxxxxx Xxxxxx
98 1800 Lake Brazos Drive
99 0000 Xxxxxx Xxxxxx
100 8200 Wild Xxxxx Xxxxx
000 0000 Xxxxxx Xxxxxx
102 9502 Center Xxxxxx
000 00 Xxxx Xxxxxx
000 000-000 Montana Avenue;2610-2616,2625,2629-2665 Xxxx 0xx Xx., 0000,0000,0000,0000,0000,0000 Xxxx 0xx Xx.
105 2004 Xxxxx Xxxxx Xxxx
000 00000 Xxxxx Xxxx 56
107 401 Xxxxxxxx Drive
108 0000 Xxxxx Xxxx 00 Xxxx
109 1507 North Xxxxx Xxxxxx
000 00 Xxxx Xxxx
111 000 Xxxxxx Xxxxxx, 000 Xxx Xxxxxxxx Avenue & 37 Avenue A
112 5025 FM-2351
113 0000 Xxxxxxxx Xxx
114 0000-0000 Xxxxxxxxxxx Xxxxxx
115 000 Xxxxxxxxx Xxxxxx
116 0000 Xxxx Xxxxxx Xxxxxx
117 000 Xxxxxxxxxx Xxxx Xxxxxxxxx
118 00000 Xxxx Xxxxxxxxxx Xxxxxx
119 0000 Xxxx Xxxx Xxxxxx
000 000-000 Xxxx 00xx Xxxxxx
000 0000 Xxxxxxxx Xxxxx
000 000 Xxxxxxxx Xx XX
123 0000 Xxxx Xxxx Xxxxxx
124 530 North La Xxxxx Xxxxxx
000 0000 Xxxxxx Xxxx Avenue
126 1331 Xxxxxx Xxxxxxxx Parkway South
127 0000 Xxxxxxxxx Xxxxx
128 000-000 Xxxxx Xxxxx Xxxx
129 0000 Xxxxx Xxxx Xxxxxx
130 0000 Xxxxxxxxxx Xxxx
131 12050 Arrow Xxxxx
000 000 Xxxxxxx Xxxxxx
133 999 North 000 Xxxx
000 0000 Xxxxx 0xx Xxxxxx
135 000 Xxxx Xxxx
136 000 Xxxxxxxxxxx Xxxx
137 0000 Xxxxxxx Xxxxxx
000 0000-0000 North Winery Avenue
139 000 Xxxxx Xxxxxx
140 0000 Xxxxxxxxx Xxxx
141 0000 Xxxxxx Xxxxxx
000 0000 XX Xxxxxxxxx Mall Drive
143 7210 40th Street West
144 2213 Xxxxx X Xxxxx Xxxxx
000 00000 Interstate 45 South
146 5370 Highway 42
147 10110 Walnut Xxxxxx
000 0000 Xxx Xxxxxxx Xxxxxx
149 4205 Xxxxx Xxxxxxxxx
000 00000 Xxxxx X Xxxxx Boulevard
151 3555 XX 0000 Xxxx Xxxx
000 000 Xxxxxx Xxxxx Boulevard
153 000 Xxxxx Xxxx Xxxx
154 0000 Xxxxx Xxxxxxxxxx Xxxxxx
155 00000 Xxxxxx Xxxx Units 201-208
156 275 Beavercreek Road
157 0000 Xxxxx Xxxxxx
158 0000 Xxxxxx Xxxxxx
159 00000 Xxxxxxxx Xxxxxxxxx & 0000 Xxxxxxxx Xxxxxx
000 0000-0000 Sobb Avenue
161 363 Route 111
162 17007 Abercorn Street
163 0000-0000 X. Xxxxxxx Xxxxxx & 000-000 X. Xxxxxx Xxxxxx
164 285 & 000 Xxxxxxxxx Xxxxx Xxxxxxxxx
165 0000 Xxxxxxxx Xxxxx
166 1880 Nooseneck Hill Road
167 0000 Xxxx Xxxxxxxxx Xxxxxx
168 1900 West International Xxxxxxxx Xxxxxxxxx
000 0000 Xxxxx Xxxxxxx Xxxxxx
000 0000-0000 Xxxxxxxxxxxx Xxxxxxxxx
000 000 Xxxxx Xxxx
172 000-000 Xxxx Xxxxxxx Xxxxxx
173 000 000xx Xxxxxx Xxxxx
000 0000 00xx Xxxxxx
175 0000 Xxxxxxxx Xxxxx Xxxxxxxxx
176 000-000 Xxxxx Xxxxxx
177 0000 Xxxxx Xxxxx Xxxxxx
178 1301 South Xxxx Xxxxxx
000 0000 Xxxxxxxxxxxx Xxxx
180 000-000 Xxxxx Xxxxx Xxxxxxx 000
Xxxxxxxx Xxxx Xxxxx Zip Code Mortgage Rate Amortization Basis (1) Original Balance
-------- -------------------- ------- -------- ------------- ---------------------- ----------------
1 Various Various Various 5.797% Actual/360 $394,477,317
1.1 Xxxxxxxxxx XX 00000 60,952,054
1.2 Xxxxxxxxx XX 00000 48,277,714
1.3 Xxxxxxx XX 00000 45,397,182
1.4 Xxxxxxxxxx XX 00000 41,030,296
1.5 XxXxxx XX 00000 34,600,949
1.6 Xxxxxxxx XX 00000 23,124,910
1.7 Xxxxxxxx XX 00000 21,488,768
1.8 Xxxxxxxx XX 00000 21,333,219
1.9 Xxxxxxxx XX 00000 17,490,590
1.10 Xxxxxxxxx XX 00000 16,130,978
1.11 Xxxxxx XX 00000 12,213,455
1.12 Xxxxxxxx XX 00000 10,669,490
1.13 Xxxxxxxxxx XX 00000 10,139,472
1.14 Xxxxxxxx XX 00000 9,851,419
1.15 Xxxxxx XX 00000 8,664,640
1.16 Xxxxxxxxxx XX 00000 7,316,551
1.17 Xxxxxxxx XX 00000 5,795,630
1.18 Xxxxxxxxx XX 00000 0
1.19 Xxxxxx XX 00000 0
1.20 Xxxxxxx XX 00000 0
2 Xxx Xxxx XX 00000 6.281% Actual/360 187,500,000
3 Xxx Xxxx XX 00000 5.728% Actual/360 162,500,000
4 Xxxxxxxx Xxxx XX 00000 5.699% Actual/360 153,000,000
5 Xxxxxxxxx XX 00000 5.665% 30/360 150,400,000
6 Xxx Xxxxx XX 00000 5.603% Actual/360 130,400,000
7 Xxxxxx XX 00000 5.589% Actual/360 120,000,000
8 Xxx Xxxx XX 00000 5.658% Actual/360 91,000,000
9 Xxxxxx Xxxx XX 00000 6.011% Actual/360 87,000,000
10 Xxxxxxxxxxx XX 00000 5.287% Actual/360 76,200,000
11 Xxxxxxx XX 00000 5.448% Actual/360 70,373,016
12 Various CT Various 6.041% Actual/360 61,000,000
12.1 Xxxxx Xxxxx XX 00000 35,000,000
12.2 Xxxxxxxx XX 00000 26,000,000
13 Xxxxxxxxxxxx XX 00000 5.448% Actual/360 50,712,288
00 Xxxx Xxxxx Xxxxxxx XX 00000 5.724% Actual/360 50,000,000
15 Xxxxxxxx XX 00000 5.448% Actual/360 48,381,600
16 Xxxxxx XX 00000 5.982% Actual/360 44,400,000
16.1 Xxxxxx XX 00000 28,300,000
16.2 Xxxxxx XX 00000 16,100,000
17 Xxxxxxxxx XX 00000 5.665% 30/360 44,400,000
18 Xxxxxxxx XX 00000 5.448% Actual/360 40,425,230
19 Xxxxxx XX 00000 5.448% Actual/360 30,458,783
20 Xxxxx XX 00000 5.660% Actual/360 30,000,000
21 Xxxxxxxxxx XX 00000 5.448% Actual/360 28,116,029
22 Xxxxxxx XX 00000 5.448% Actual/360 25,818,322
Various Various Various Actual/360 25,304,000
23 Various Various Various 5.617% Actual/360 11,454,000
23.1 Xxxxxx XX 00000 7,700,000
23.2 XxXxxxxxx XX 00000 3,754,000
24 Xxxxxxxx XX 00000 5.617% Actual/360 8,100,000
25 Various MI Various 5.719% Actual/360 5,750,000
25.1 Xxxxxx Xxxxxxxx XX 00000 3,162,500
25.2 Xxxxxxxxx XX 00000 2,587,500
26 Xxxxxxxxxxxxxx XX 00000 5.633% Actual/360 25,200,000
27 Xxxxxxx XX 00000 5.797% Actual/360 24,650,000
27.1 Xxxxxxx XX 00000 3,525,132
27.2 Xxxxxxx XX 00000 3,509,524
27.3 Xxxxxxx XX 00000 2,646,473
27.4 Xxxxxxx XX 00000 2,325,103
27.5 Xxxxxxx XX 00000 2,309,494
27.6 Xxxxxxx XX 00000 2,197,889
27.7 Xxxxxxx XX 00000 2,157,051
27.8 Xxxxxxx XX 00000 2,004,883
27.9 Xxxxxxx XX 00000 1,743,366
27.10 Xxxxxxx XX 00000 1,524,899
27.11 Xxxxxxx XX 00000 706,187
28 Xxxxxxxxxxx XX 00000 6.077% Actual/360 23,560,000
29 Xxxxxxxxxx XX 00000 5.518% Actual/360 21,000,000
30 Xxx Xxxxx XX 00000 5.802% Actual/360 21,000,000
31 Xxxxxxx XX 00000 5.448% Actual/360 20,708,572
32 Xxxxx XX 00000 5.628% Actual/360 20,000,000
00 Xxxxx XX 00000 5.895% Actual/360 19,950,000
34 Xxxxxx XX 00000 5.648% Actual/360 18,640,000
35 Xxxxxxxxxxx XX 00000 5.560% Actual/360 17,500,000
35.1 Xxxxxxxxxxx XX 00000 11,526,964
35.2 Xxxxxxxxxxx XX 00000 4,074,839
35.3 Xxxxxxxxxxx XX 00000 1,898,196
36 Xxxxxx Xxxxxx XX 00000 5.448% Actual/360 17,417,561
00 Xxxxxxxxx XX 00000 5.626% Actual/360 16,320,000
00 Xxxxx Xxxxxxxxxx XX 00000 6.077% Actual/360 16,000,000
39 Xxxxxxxx XX 00000 6.075% Actual/360 15,440,000
40 Xxxxxxxx XX 00000 5.448% Actual/360 15,296,764
41 Xxxxxxxxxx XX 00000 5.592% Actual/360 14,600,000
42 Xxx Xxxxx XX 00000 6.130% Actual/360 13,300,000
43 Xxxxx Xxxxx XX 00000 5.999% Actual/360 13,300,000
44 Xxxxxxxxx XX 00000 5.448% Actual/360 12,903,920
00 Xxxxxx Xxxxx XX 00000 5.630% Actual/360 12,900,000
46 Xxxxxx XX 00000 5.717% Actual/360 12,840,000
47 Xxxxxxx XX 00000 5.492% Actual/360 11,952,000
48 X'Xxxxxxxxx XX 00000 6.055% Actual/360 11,550,000
00 Xxxxx Xxxx XX 00000 5.634% Actual/360 11,381,325
50 Xxxxxx XX 00000 5.888% Actual/360 11,000,000
51 Xxxxxxxxx XX 00000 5.636% Actual/360 10,750,000
00 Xxxxx XX 00000 5.915% Actual/360 10,500,000
53 Xxxxxxxx XX 00000 5.690% Actual/360 10,500,000
54 Xxxxxxx XX 00000 6.048% Actual/360 10,400,000
55 Xxxx Xxxxx XX 00000 5.670% Actual/360 10,400,000
00 Xxxx Xxxxxxxxx XX 00000 5.685% Actual/360 10,400,000
57 Xxxxxxx XX 00000 5.600% Actual/360 10,350,000
58 Various Various Various 5.567% Actual/360 10,300,000
58.1 Xxxxxxxxxxxx XX 00000 3,604,246
58.2 Xxxxxxxx XX 00000 3,287,555
58.3 Xxxxxxxxxxxx XX 00000 2,443,045
58.4 Xxxxxxxxxx XX 00000 965,154
59 Xxxxx XX 00000 5.884% Actual/360 10,050,000
60 Xxxxxxx XX 00000 5.504% Actual/360 10,000,000
61 Xxxxxxxxxx XX 00000 5.448% Actual/360 9,887,151
62 Xxxxxxxxxx XX 00000 5.880% Actual/360 9,599,646
63 Xxxx XX 00000 5.574% Actual/360 9,385,000
64 Xxxxxxxxxx XX 00000 5.646% Actual/360 9,200,000
64.1 Xxxxxxxxxx XX 00000 2,934,500
64.2 Xxxxxxxxxx XX 00000 2,538,000
64.3 Xxxxxxxxxx XX 00000 1,903,500
64.4 Xxxxxxxxxx XX 00000 1,824,000
65 Xxxxxxxx XX 00000 5.859% Actual/360 9,000,000
66 Xxxxxx XX 00000 5.874% Actual/360 8,920,000
67 Xx Xxxxx XX 00000 5.549% Actual/360 8,800,000
00 Xxxxx Xxxx XX 00000 5.730% Actual/360 8,636,000
69 Xxxxxxxx XX 00000 5.562% Actual/360 8,500,000
70 Xxxxxxxxx XX 00000 5.728% Actual/360 8,200,000
71 Xxxxxx XX 00000 5.597% Actual/360 8,200,000
72 Xxxxxxx XX 00000 5.578% Actual/360 8,075,000
73 Xxxxxx XX 00000 5.712% Actual/360 7,900,000
74 Xxxxxxx XX 00000 5.912% Actual/360 7,925,000
75 Xxxxxxxxxxxx XX 00000 5.887% Actual/360 7,784,741
76 Xxxxx XX 00000 5.580% Actual/360 7,500,000
77 Xxxxxxxx XX 00000 5.834% Actual/360 7,400,000
78 Xxxxxx XX 00000 5.676% Actual/360 7,385,000
79 Xxxxxx XX 00000 5.880% Actual/360 7,093,317
80 Xxxxx Xxxxx XX 00000 5.562% Actual/360 7,000,000
81 Xxxxxx Xxxxxx XX 00000 5.798% Actual/360 6,900,000
00 Xxxxxxx Xxxxxxx XX 00000 5.605% Actual/360 6,840,000
00 Xxxxx Xxxxx Xxxxxx XX 00000 5.720% Actual/360 6,800,000
84 Xxxxxxxxx XX 00000 5.919% Actual/360 6,640,000
85 Xxxxx Xxxx XX 00000 5.529% Actual/360 6,500,000
00 Xxxxx x'Xxxxx XX 00000 5.647% Actual/360 6,300,000
87 Xxxx XX 00000 5.694% Actual/360 6,225,000
88 Xxxxxxx XX 00000 5.458% 30/360 6,060,000
00 Xxxxx XX 00000 5.712% Actual/360 6,020,000
90 Xxxxxxx XX 00000 5.698% Actual/360 6,000,000
91 Xxxxxxxx XX 00000 5.751% Actual/360 5,900,000
92 Xxxxxxxxxx XX 00000 5.626% Actual/360 5,900,000
93 Xxxxxxxx XX 00000 6.108% Actual/360 5,800,000
94 Various MA Various 5.671% Actual/360 5,800,000
94.1 Xxxxxxxx XX 00000 4,168,988
94.2 Xxxxxxxx XX 00000 1,631,012
95 Xxxxxx XX 00000 5.937% Actual/360 5,800,000
96 Xxxxx Xxxxx XX 00000 5.722% Actual/360 5,700,000
00 Xxxxxxxx XX 00000 5.600% Actual/360 5,640,000
00 Xxxx XX 00000 5.634% Actual/360 5,550,000
99 Xxxxxx XX 00000 5.751% Actual/360 5,440,000
000 Xxxxxxxxxx XX 00000 5.985% Actual/360 5,355,000
000 Xxxxxxxxx XX 00000 5.728% Actual/360 5,250,000
000 Xxxxxxxx XX 00000 5.854% Actual/360 5,230,000
000 Xxxxxxx XX 00000 5.680% Actual/360 5,060,000
000 Xxxxxx XX 00000 6.050% Actual/360 5,000,000
000 Xxxx XX 00000 5.736% Actual/360 5,000,000
000 Xxxxxx Xxxxxx XX 00000 5.904% Actual/360 4,968,000
000 Xxxxxxx Xxxxxxx XX 00000 5.626% Actual/360 4,950,000
108 Xxxxxxxxx XX 00000 5.880% Actual/360 4,738,500
109 Xxxxxx XX 00000 6.156% Actual/360 4,690,000
110 Xxxxxxxxxx XX 00000 5.566% Actual/360 4,652,000
000 Xxxxxx XX 00000 5.757% Actual/360 4,600,000
000 Xxxxxxxxxxx XX 00000 5.626% Actual/360 4,600,000
000 Xxxxx Xxxxx XX 00000 5.826% Actual/360 4,600,000
000 Xxx Xxxxxxxxxx XX 00000 6.016% Actual/360 4,550,000
000 Xxxxxxxxxxxx XX 00000 5.560% Actual/360 4,480,000
116 Xxxxxx XX 00000 5.880% Actual/360 4,436,767
000 Xxxxxxx Xxxxxxx XX 00000 5.596% Actual/360 4,400,000
000 Xxxxxxxxxxxx XX 00000 5.880% Actual/360 4,322,500
000 Xxxxxxx XX 00000 5.573% Actual/360 4,261,000
000 Xxxxxxx XX 00000 5.660% Actual/360 4,160,000
000 Xxxxxxx XX 00000 5.991% Actual/360 4,200,000
000 Xxxxxxx XX 00000 5.922% Actual/360 4,125,000
000 Xxxxxxxxxx XX 00000 5.683% Actual/360 4,080,000
000 Xxxxxxx XX 00000 5.700% Actual/360 4,000,000
000 Xxxxxxxxxx XX 00000 6.069% Actual/360 4,000,000
000 Xxxxxxx Xxxxxxx XX 00000 5.609% Actual/360 3,950,000
000 Xxxxxxxx Xxxx XX 00000 5.896% Actual/360 3,920,000
000 Xxxxxxxxxx XX 00000 5.683% Actual/360 3,800,000
129 Xxxxxx XX 00000 5.880% Actual/360 3,797,364
000 Xxxxxxx XX 00000 5.914% Actual/360 3,680,000
000 Xxxxxx Xxxxxxxxx XX 00000 5.820% Actual/360 3,600,000
000 Xxxxxxxx XX 00000 5.820% Actual/360 3,560,000
000 Xxxx Xxxxxxxxx XX 00000 5.788% Actual/360 3,575,000
000 Xxxxxx XX 00000 5.550% Actual/360 3,550,000
000 Xxx Xxxxx XX 00000 5.560% Actual/360 3,500,000
000 Xxx Xxxxx XX 00000 5.569% Actual/360 3,500,000
000 Xxxxx Xxxxx Xxxxxxxx XX 00000 5.610% Actual/360 3,487,000
000 Xxxxxx XX 00000 5.659% Actual/360 3,420,152
000 Xxxxx XX 00000 5.722% Actual/360 3,400,000
140 Xxxxxxxx XX 00000 6.183% Actual/360 3,370,000
000 XxXxxxxxxx XX 00000 5.740% Actual/360 3,300,000
000 Xxxxxxxxx XX 00000 6.014% Actual/360 3,300,000
000 Xxxxxxxxxx Xxxxx XX 00000 6.082% Actual/360 3,283,200
000 Xxxxxxxxxx XX 00000 5.646% Actual/360 3,280,000
000 Xxxxxxxxxx XX 00000 6.035% Actual/360 3,225,000
000 Xxxxxxxxxxx XX 00000 6.062% Actual/360 3,200,000
000 Xxxxxx XX 00000 5.814% Actual/360 3,200,000
000 Xxxxxx XX 00000 5.649% Actual/360 3,100,000
000 Xxxxx Xxxxx Xxxxxx XX 00000 5.720% Actual/360 3,000,000
000 Xxxxx XX 00000 5.847% Actual/360 2,800,000
000 Xxxxxxx XX 00000 6.306% Actual/360 2,800,000
000 Xxxxxx Xxxxx XX 00000 5.980% Actual/360 2,726,000
000 Xxxx Xxxxxx XX 00000 5.726% Actual/360 2,700,000
000 Xxxxxx XX 00000 5.880% Actual/360 2,694,691
000 Xxxx Xxxxxxxxxx XX 00000 5.900% Actual/360 2,680,000
156 Xxxxxx Xxxx XX 00000 5.855% Actual/360 2,650,000
000 Xxxxxxxxxxx XX 00000 5.560% Actual/360 2,540,000
000 Xxxxxxxx XX 00000 6.000% Actual/360 2,500,000
000 Xxxxx Xxxxxxxxx XX 00000 6.000% Actual/360 2,500,000
000 Xxx Xxxxx XX 00000 5.545% Actual/360 2,500,000
000 Xxxxxxxxx XX 00000 5.860% Actual/360 2,480,000
000 Xxxxxxxx XX 00000 6.508% Actual/360 2,400,000
000 Xxxxxxx XX 00000 5.642% Actual/360 2,350,000
000 Xxxxxxxx XX 00000 5.742% Actual/360 2,340,000
000 Xxxxxxx XX 00000 6.031% Actual/360 2,280,000
000 Xxxxxxxx XX 00000 5.700% Actual/360 2,200,000
000 Xxxxxxxxxxx XX 00000 5.580% Actual/360 2,100,000
000 Xxxxxxx Xxxxx XX 00000 5.742% Actual/360 2,100,000
000 Xxxxxx Xxxxxxx XX 00000 5.872% Actual/360 2,000,000
000 Xxxxxxxxxxxx XX 00000 5.848% Actual/360 1,900,000
000 Xxxxx Xxxxx XX 00000 6.170% Actual/360 1,700,000
000 Xxxxxxx XX 00000 5.729% Actual/360 1,513,755
000 Xxxxxxxx XX 00000 6.728% Actual/360 1,475,000
000 Xxxxxxxxxx XX 00000 5.612% Actual/360 1,475,000
000 Xxxxxxxxxxx XX 00000 6.274% Actual/360 1,475,000
000 Xxxxxxxxxx XX 00000 6.064% Actual/360 1,430,500
000 Xxxxxxxxxxx XX 00000 5.708% Actual/360 1,400,000
000 Xxxxxxxx XX 00000 5.880% Actual/360 1,392,279
000 Xxx Xxxxx XX 00000 5.860% Actual/360 1,288,000
000 Xxxxxx Xxxxx XX 00000 5.757% Actual/360 1,150,000
Sequence Cut-off Date Balance Remaining Term To Stated Maturity (months) Stated Maturity Date Due Date
-------- -------------------- ------------------------------------------ -------------------- --------
1 $394,477,317 59 5/7/2012 Seventh
1.1 60,952,054
1.2 48,277,714
1.3 45,397,182
1.4 41,030,296
1.5 34,600,949
1.6 23,124,910
1.7 21,488,768
1.8 21,333,219
1.9 17,490,590
1.10 16,130,978
1.11 12,213,455
1.12 10,669,490
1.13 10,139,472
1.14 9,851,419
1.15 8,664,640
1.16 7,316,551
1.17 5,795,630
1.18 0
1.19 0
1.20 0
2 187,500,000 57 3/1/2012 First
3 162,500,000 76 10/1/2013 First
4 153,000,000 67 1/1/2013 First
5 150,080,095 118 4/1/2017 First
6 130,400,000 117 3/1/2017 First
7 120,000,000 104 2/1/2016 First
8 91,000,000 116 2/1/2017 First
9 87,000,000 58 4/1/2012 First
10 76,200,000 55 1/1/2012 First
11 70,373,016 117 3/1/2017 First
12 61,000,000 115 1/1/2017 First
12.1 35,000,000
12.2 26,000,000
13 50,712,288 117 3/1/2017 First
14 50,000,000 60 6/1/2012 First
15 48,381,600 117 3/1/2017 First
16 44,400,000 80 2/1/2014 First
16.1 28,300,000
16.2 16,100,000
17 44,305,560 118 4/1/2017 First
18 40,425,230 117 3/1/2017 First
19 30,458,783 117 3/1/2017 First
20 29,940,841 118 4/1/2017 First
21 28,116,029 117 3/1/2017 First
22 25,818,322 117 3/1/2017 First
25,304,000
23 11,454,000 119 5/1/2017 First
23.1 7,700,000
23.2 3,754,000
24 8,100,000 119 5/1/2017 First
25 5,750,000 119 5/1/2017 First
25.1 3,162,500
25.2 2,587,500
26 25,200,000 115 1/1/2017 First
27 24,650,000 117 3/1/2017 First
27.1 3,525,132
27.2 3,509,524
27.3 2,646,473
27.4 2,325,103
27.5 2,309,494
27.6 2,197,889
27.7 2,157,051
27.8 2,004,883
27.9 1,743,366
27.10 1,524,899
27.11 706,187
28 23,560,000 56 2/1/2012 First
29 21,000,000 117 3/1/2017 First
30 21,000,000 120 6/1/2017 First
31 20,708,572 117 3/1/2017 First
32 19,981,758 119 5/1/2017 First
33 19,950,000 116 2/1/2017 First
34 18,640,000 59 5/1/2012 First
35 17,500,000 59 5/1/2012 First
35.1 11,526,964
35.2 4,074,839
35.3 1,898,196
36 17,417,561 117 3/1/2017 First
37 16,287,578 118 4/1/2017 First
38 16,000,000 56 2/1/2012 First
39 15,440,000 56 2/1/2012 First
40 15,296,764 117 3/1/2017 First
41 14,600,000 119 5/1/2017 First
42 13,300,000 55 1/1/2012 First
43 13,224,021 114 12/1/2016 First
44 12,903,920 117 3/1/2017 First
45 12,862,523 118 4/1/2017 First
46 12,840,000 119 5/1/2017 First
47 11,872,892 105 3/1/2016 First
48 11,504,070 117 3/1/2017 First
49 11,381,325 119 5/1/2017 First
50 11,000,000 116 2/1/2017 First
51 10,750,000 119 5/1/2017 First
52 10,500,000 116 2/1/2017 First
53 10,500,000 120 6/1/2017 First
54 10,400,000 119 5/1/2017 First
55 10,400,000 82 4/1/2014 First
56 10,400,000 118 4/5/2017 Fifth
57 10,340,493 119 5/1/2017 First
58 10,300,000 114 12/1/2016 First
58.1 3,604,246
58.2 3,287,555
58.3 2,443,045
58.4 965,154
59 10,050,000 120 6/1/2017 First
60 10,000,000 120 6/1/2017 First
61 9,887,151 117 3/1/2017 First
62 9,543,421 114 12/1/2016 First
63 9,385,000 119 5/1/2017 First
64 9,200,000 118 4/1/2017 First
64.1 2,934,500
64.2 2,538,000
64.3 1,903,500
64.4 1,824,000
65 8,983,011 118 4/1/2017 First
66 8,912,359 119 5/1/2017 First
67 8,800,000 118 4/1/2017 First
68 8,636,000 117 3/1/2017 First
69 8,492,118 119 5/1/2017 First
70 8,200,000 119 5/1/2017 First
71 8,164,471 116 2/1/2017 First
72 8,075,000 118 4/1/2017 First
73 7,900,000 119 5/1/2017 First
74 7,872,296 113 11/1/2016 First
75 7,784,741 120 6/1/2017 First
76 7,500,000 118 4/1/2017 First
77 7,400,000 119 5/1/2017 First
78 7,385,000 120 6/1/2017 First
79 7,051,772 114 12/1/2016 First
80 6,993,509 119 5/1/2017 First
81 6,900,000 120 6/1/2017 First
82 6,810,408 116 2/1/2017 First
83 6,786,765 118 4/1/2017 First
84 6,640,000 118 4/1/2017 First
85 6,500,000 118 4/1/2017 First
86 6,300,000 118 4/1/2017 First
87 6,225,000 118 4/1/2017 First
88 6,060,000 118 4/1/2017 First
89 6,002,753 118 4/1/2017 First
90 6,000,000 120 6/1/2017 First
91 5,900,000 117 3/1/2017 First
92 5,874,575 116 2/1/2017 First
93 5,789,643 58 4/1/2012 First
94 5,788,590 118 4/1/2017 First
94.1 4,160,787
94.2 1,627,803
95 5,784,011 118 4/1/2017 First
96 5,700,000 120 6/1/2017 First
97 5,640,000 119 5/1/2017 First
98 5,538,993 118 4/1/2017 First
99 5,440,000 118 4/1/2017 First
100 5,355,000 117 3/1/2017 First
101 5,250,000 119 5/1/2017 First
102 5,230,000 118 4/1/2017 First
103 5,060,000 119 5/1/2017 First
104 5,000,000 117 3/1/2017 First
105 5,000,000 115 1/1/2017 First
106 4,968,000 116 2/1/2017 First
107 4,928,669 116 2/1/2017 First
108 4,710,747 114 12/1/2016 First
109 4,690,000 120 6/1/2017 First
110 4,652,000 117 3/1/2017 First
111 4,600,000 118 4/1/2017 First
112 4,580,177 116 2/1/2017 First
113 4,572,511 116 2/1/2017 First
114 4,537,912 117 3/1/2017 First
115 4,475,843 119 5/1/2017 First
116 4,410,781 114 12/1/2016 First
117 4,380,932 116 2/1/2017 First
118 4,297,183 114 12/1/2016 First
119 4,257,059 119 5/1/2017 First
120 4,160,000 120 6/1/2017 First
121 4,154,737 115 1/1/2017 First
122 4,099,196 117 3/1/2017 First
123 4,080,000 120 6/1/2017 First
124 4,000,000 119 5/1/2017 First
125 3,976,964 116 2/1/2017 First
126 3,932,924 116 2/1/2017 First
127 3,912,661 118 4/1/2017 First
128 3,800,000 120 6/1/2017 First
129 3,775,123 114 12/1/2016 First
130 3,669,986 117 3/1/2017 First
131 3,600,000 117 3/1/2017 First
132 3,560,000 59 5/1/2012 First
133 3,553,513 116 2/1/2017 First
134 3,550,000 119 5/1/2017 First
135 3,496,753 119 5/1/2017 First
136 3,489,690 117 3/1/2017 First
137 3,487,000 119 5/1/2017 First
138 3,413,406 118 4/1/2017 First
139 3,393,385 118 4/1/2017 First
140 3,367,340 119 5/1/2017 First
141 3,300,000 119 5/1/2017 First
142 3,295,800 119 5/1/2017 First
143 3,283,200 118 4/1/2017 First
144 3,273,512 118 4/1/2017 First
145 3,206,331 116 2/1/2017 First
146 3,200,000 120 6/1/2017 First
147 3,191,088 117 3/1/2017 First
148 3,093,872 118 4/1/2017 First
149 2,994,161 118 4/1/2017 First
150 2,800,000 119 5/1/2017 First
151 2,784,450 116 2/1/2017 First
152 2,726,000 57 3/1/2012 First
153 2,692,326 117 3/1/2017 First
154 2,678,908 114 12/1/2016 First
155 2,674,987 118 4/1/2017 First
156 2,650,000 118 4/1/2017 First
157 2,536,472 119 5/1/2017 First
158 2,497,928 119 5/1/2017 First
159 2,497,928 119 5/1/2017 First
160 2,494,946 118 4/1/2017 First
161 2,480,000 119 5/1/2017 First
162 2,391,216 117 3/1/2017 First
163 2,347,864 119 5/1/2017 First
164 2,340,000 118 4/1/2017 First
165 2,273,964 57 3/1/2012 First
166 2,193,710 117 3/1/2017 First
167 2,095,786 118 4/1/2017 First
168 2,094,053 117 3/1/2017 First
169 2,000,000 119 5/1/2017 First
170 1,900,000 117 3/1/2017 First
171 1,695,646 117 3/1/2017 First
172 1,513,755 118 4/1/2017 First
173 1,475,000 115 1/1/2017 First
174 1,468,627 116 2/1/2017 First
175 1,468,217 115 1/1/2017 First
176 1,426,742 117 3/1/2017 First
177 1,397,268 118 4/1/2017 First
178 1,384,124 114 12/1/2016 First
179 1,288,000 119 5/1/2017 First
180 1,150,000 116 2/1/2017 First
$3,172,686,517
Sequence Monthly Payment Administrative Fee Rate(2) Primary Servicing Fee Rate
-------- --------------- -------------------------- --------------------------
1 1,932,122 0.03063% 0.01000%
1.1
1.2
1.3
1.4
1.5
1.6
1.7
1.8
1.9
1.10
1.11
1.12
1.13
1.14
1.15
1.16
1.17
1.18
1.19
1.20
2 994,958 0.02063% 0.01000%
3 786,454 0.03063% 0.01000%
4 736,714 0.02063% 0.01000%
5 869,589 0.02063% 0.01000%
6 617,316 0.06063% 0.05000%
7 566,693 0.02063% 0.01000%
8 435,021 0.06063% 0.05000%
9 441,873 0.02063% 0.01000%
10 340,387 0.02063% 0.01000%
11 323,901 0.02063% 0.01000%
12 367,335 0.03063% 0.01000%
12.1
12.2
13 233,410 0.02063% 0.01000%
14 241,791 0.05563% 0.03500%
15 222,683 0.03063% 0.02000%
16 224,408 0.03063% 0.01000%
16.1
16.2
17 256,714 0.03063% 0.02000%
18 186,063 0.03063% 0.02000%
19 140,191 0.03063% 0.02000%
20 173,360 0.03063% 0.02000%
21 129,408 0.03063% 0.02000%
22 118,832 0.03063% 0.02000%
23 54,359 0.03063% 0.01000%
23.1
23.2
24 38,441 0.03063% 0.01000%
25 33,442 0.03063% 0.01000%
25.1
25.2
26 119,936 0.03063% 0.02000%
27 120,734 0.03063% 0.02000%
27.1
27.2
27.3
27.4
27.5
27.6
27.7
27.8
27.9
27.10
27.11
28 120,969 0.03063% 0.02000%
29 97,906 0.03063% 0.02000%
30 102,945 0.10063% 0.02000%
31 95,314 0.03063% 0.02000%
32 115,169 0.03063% 0.02000%
33 118,267 0.10063% 0.02000%
34 88,951 0.03063% 0.02000%
35 82,209 0.03063% 0.02000%
35.1
35.2
35.3
36 80,167 0.03063% 0.02000%
37 93,957 0.03063% 0.02000%
38 82,152 0.03063% 0.02000%
39 79,251 0.03063% 0.02000%
40 70,405 0.03063% 0.02000%
41 83,742 0.03063% 0.01000%
42 80,855 0.03063% 0.02000%
43 79,732 0.03063% 0.02000%
44 59,392 0.03063% 0.02000%
45 80,222 0.10063% 0.02000%
46 62,016 0.03063% 0.02000%
47 82,162 0.03063% 0.02000%
48 74,806 0.03063% 0.01000%
49 65,582 0.03063% 0.01000%
50 65,161 0.16063% 0.06000%
51 61,958 0.03063% 0.01000%
52 62,380 0.10063% 0.02000%
53 60,876 0.03063% 0.02000%
54 62,675 0.03063% 0.01000%
55 60,164 0.03063% 0.01000%
56 60,263 0.13063% 0.03000%
57 59,417 0.03063% 0.02000%
58 48,447 0.03063% 0.02000%
58.1
58.2
58.3
58.4
59 59,507 0.03063% 0.02000%
60 56,804 0.03063% 0.02000%
61 45,507 0.03063% 0.02000%
62 56,816 0.06063% 0.05000%
63 53,724 0.10063% 0.02000%
64 53,082 0.03063% 0.02000%
64.1
64.2
64.3
64.4
65 53,146 0.03063% 0.02000%
66 52,759 0.03063% 0.01000%
67 50,236 0.10063% 0.02000%
68 50,288 0.03063% 0.02000%
69 48,593 0.03063% 0.02000%
70 47,738 0.03063% 0.02000%
71 47,059 0.03063% 0.02000%
72 38,057 0.03063% 0.02000%
73 38,126 0.03063% 0.02000%
74 46,831 0.08063% 0.06000%
75 46,109 0.10063% 0.02000%
76 35,359 0.03063% 0.02000%
77 43,580 0.03063% 0.02000%
78 35,416 0.03063% 0.02000%
79 41,982 0.06063% 0.05000%
80 40,018 0.03063% 0.02000%
81 40,477 0.03063% 0.02000%
82 39,289 0.03063% 0.02000%
83 39,553 0.07063% 0.05000%
84 39,465 0.13063% 0.03000%
85 30,365 0.03063% 0.02000%
86 36,354 0.03063% 0.02000%
87 36,106 0.15063% 0.05000%
88 27,563 0.03063% 0.02000%
89 37,734 0.03063% 0.02000%
90 41,947 0.03063% 0.02000%
91 34,435 0.10063% 0.02000%
92 33,967 0.03063% 0.02000%
93 35,178 0.13063% 0.03000%
94 33,557 0.03063% 0.02000%
94.1
94.2
95 37,146 0.13063% 0.03000%
96 33,162 0.03063% 0.02000%
97 26,686 0.03063% 0.02000%
98 31,980 0.03063% 0.02000%
99 31,750 0.15063% 0.05000%
100 32,054 0.10063% 0.02000%
101 30,564 0.03063% 0.02000%
102 25,868 0.03063% 0.02000%
103 24,283 0.03063% 0.02000%
104 30,137 0.03063% 0.01000%
105 29,134 0.10063% 0.02000%
106 29,480 0.10063% 0.02000%
107 28,498 0.03063% 0.02000%
108 28,045 0.06063% 0.05000%
109 30,667 0.03063% 0.02000%
110 26,607 0.10063% 0.02000%
111 26,865 0.10063% 0.02000%
112 26,483 0.03063% 0.02000%
113 29,151 0.10063% 0.02000%
114 27,326 0.03063% 0.01000%
115 25,606 0.10063% 0.02000%
116 26,259 0.06063% 0.05000%
117 25,248 0.03063% 0.02000%
118 25,583 0.06063% 0.05000%
119 24,389 0.03063% 0.02000%
120 24,039 0.03063% 0.02000%
121 30,068 0.16063% 0.06000%
122 29,367 0.10063% 0.02000%
123 23,636 0.10063% 0.02000%
124 19,264 0.03063% 0.02000%
125 25,941 0.10063% 0.02000%
126 22,699 0.03063% 0.02000%
127 23,241 0.03063% 0.02000%
128 22,014 0.10063% 0.02000%
129 22,475 0.06063% 0.05000%
130 21,860 0.10063% 0.02000%
131 21,169 0.10063% 0.02000%
132 17,506 0.03063% 0.02000%
133 22,573 0.10063% 0.02000%
134 16,647 0.07063% 0.06000%
135 20,005 0.10063% 0.02000%
136 20,024 0.10063% 0.02000%
137 20,040 0.03063% 0.01000%
138 19,762 0.03063% 0.02000%
139 19,781 0.10063% 0.02000%
140 20,603 0.10063% 0.02000%
141 19,237 0.03063% 0.01000%
142 21,290 0.10063% 0.02000%
143 19,858 0.10063% 0.02000%
144 18,925 0.03063% 0.02000%
145 20,848 0.10063% 0.02000%
146 19,313 0.03063% 0.02000%
147 18,805 0.18063% 0.08000%
148 17,892 0.03063% 0.02000%
149 17,450 0.08063% 0.06000%
150 16,513 0.10063% 0.02000%
151 18,568 0.10063% 0.02000%
152 13,773 0.03063% 0.02000%
153 15,715 0.10063% 0.02000%
154 15,949 0.06063% 0.05000%
155 15,896 0.10063% 0.02000%
156 15,642 0.10063% 0.02000%
157 15,689 0.10063% 0.02000%
158 14,989 0.03063% 0.02000%
159 14,989 0.03063% 0.02000%
160 14,265 0.10063% 0.02000%
161 14,646 0.10063% 0.02000%
162 16,217 0.18063% 0.08000%
163 13,553 0.03063% 0.02000%
164 13,644 0.10063% 0.02000%
165 13,715 0.10063% 0.02000%
166 12,769 0.10063% 0.02000%
167 12,029 0.03063% 0.02000%
168 12,244 0.10063% 0.02000%
169 11,827 0.10063% 0.02000%
170 11,206 0.10063% 0.02000%
171 10,379 0.10063% 0.02000%
172 8,814 0.08063% 0.07000%
173 9,545 0.10063% 0.02000%
174 8,479 0.03063% 0.02000%
175 9,105 0.10063% 0.02000%
176 8,636 0.10063% 0.02000%
177 8,133 0.03063% 0.02000%
178 8,240 0.06063% 0.05000%
179 7,607 0.03063% 0.02000%
180 5,594 0.03063% 0.02000%
Sequence Master Servicing Fee Rate Ownership Interest Cross-Collateralized Loans
-------- ------------------------- ------------------ --------------------------
1 0.02000% Various No
1.1 Pledge
1.2 Fee
1.3 Fee
1.4 Fee
1.5 Fee
1.6 Leasehold
1.7 Fee
1.8 Fee
1.9 Fee
1.10 Fee
1.11 Fee
1.12 Fee
1.13 Fee
1.14 Fee
1.15 Fee
1.16 Fee
1.17 Fee
1.18 Pledge
1.19 Pledge
1.20 Pledge
2 0.01000% Fee No
3 0.02000% Fee No
4 0.01000% Fee No
5 0.01000% Fee No
6 0.01000% Leasehold No
7 0.01000% Fee No
8 0.01000% Fee No
9 0.01000% Fee No
10 0.01000% Fee No
11 0.01000% Fee No
12 0.02000% Fee No
12.1 Fee
12.2 Fee
13 0.01000% Fee No
14 0.02000% Fee No
15 0.01000% Fee No
16 0.02000% Fee No
16.1 Fee
16.2 Fee
17 0.01000% Fee No
18 0.01000% Fee No
19 0.01000% Fee No
20 0.01000% Fee/Leasehold No
21 0.01000% Fee No
22 0.01000% Fee No
Fee BACM 2007-2 A
23 0.02000% Fee BACM 2007-2 A
23.1 Fee
23.2 Fee
24 0.02000% Fee BACM 2007-2 A
25 0.02000% Fee BACM 2007-2 A
25.1 Fee
25.2 Fee
26 0.01000% Fee No
27 0.01000% Fee No
27.1 Fee
27.2 Fee
27.3 Fee
27.4 Fee
27.5 Fee
27.6 Fee
27.7 Fee
27.8 Fee
27.9 Fee
27.10 Fee
27.11 Fee
28 0.01000% Fee No
29 0.01000% Fee No
30 0.08000% Fee No
31 0.01000% Fee No
32 0.01000% Fee No
33 0.08000% Fee No
34 0.01000% Fee No
35 0.01000% Fee No
35.1 Fee
35.2 Fee
35.3 Fee
36 0.01000% Fee No
37 0.01000% Fee No
38 0.01000% Fee No
39 0.01000% Fee No
40 0.01000% Fee No
41 0.02000% Fee No
42 0.01000% Fee No
43 0.01000% Fee No
44 0.01000% Fee No
45 0.08000% Fee No
46 0.01000% Fee No
47 0.01000% Fee No
48 0.02000% Fee No
49 0.02000% Fee No
50 0.10000% Fee No
51 0.02000% Fee No
52 0.08000% Fee No
53 0.01000% Fee No
54 0.02000% Leasehold No
55 0.02000% Fee No
56 0.10000% Fee No
57 0.01000% Fee No
58 0.01000% Fee No
58.1 Fee
58.2 Fee
58.3 Fee
58.4 Fee
59 0.01000% Fee No
60 0.01000% Fee No
61 0.01000% Fee No
62 0.01000% Fee No
63 0.08000% Fee No
64 0.01000% Fee No
64.1 Fee
64.2 Fee
64.3 Fee
64.4 Fee
65 0.01000% Fee No
66 0.02000% Fee No
67 0.08000% Leasehold No
68 0.01000% Fee No
69 0.01000% Fee No
70 0.01000% Fee No
71 0.01000% Fee No
72 0.01000% Fee No
73 0.01000% Fee No
74 0.02000% Fee No
75 0.08000% Fee No
76 0.01000% Fee No
77 0.01000% Fee No
78 0.01000% Fee No
79 0.01000% Fee No
80 0.01000% Leasehold No
81 0.01000% Fee No
82 0.01000% Fee No
83 0.02000% Fee No
84 0.10000% Fee No
85 0.01000% Fee No
86 0.01000% Fee No
87 0.10000% Fee No
88 0.01000% Fee No
89 0.01000% Fee No
90 0.01000% Fee No
91 0.08000% Fee No
92 0.01000% Fee No
93 0.10000% Fee No
94 0.01000% Fee No
94.1 Fee
94.2 Fee
95 0.10000% Fee No
96 0.01000% Fee No
97 0.01000% Fee No
98 0.01000% Fee No
99 0.10000% Fee No
100 0.08000% Fee No
101 0.01000% Fee No
102 0.01000% Fee No
103 0.01000% Fee No
104 0.02000% Fee No
105 0.08000% Fee No
106 0.08000% Fee No
107 0.01000% Fee No
108 0.01000% Fee No
109 0.01000% Fee No
110 0.08000% Fee No
111 0.08000% Fee No
112 0.01000% Fee No
113 0.08000% Fee No
114 0.02000% Fee No
115 0.08000% Fee No
116 0.01000% Fee No
117 0.01000% Fee No
118 0.01000% Fee No
119 0.01000% Fee No
120 0.01000% Fee No
121 0.10000% Leasehold No
122 0.08000% Leasehold No
123 0.08000% Fee No
124 0.01000% Fee No
125 0.08000% Fee No
126 0.01000% Fee No
127 0.01000% Fee No
128 0.08000% Fee No
129 0.01000% Fee No
130 0.08000% Fee No
131 0.08000% Leasehold No
132 0.01000% Fee No
133 0.08000% Fee No
134 0.01000% Leasehold No
135 0.08000% Fee No
136 0.08000% Fee No
137 0.02000% Fee No
138 0.01000% Fee No
139 0.08000% Fee No
140 0.08000% Fee No
141 0.02000% Fee No
142 0.08000% Fee No
143 0.08000% Fee No
144 0.01000% Fee No
145 0.08000% Fee No
146 0.01000% Fee No
147 0.10000% Fee No
148 0.01000% Fee No
149 0.02000% Fee No
150 0.08000% Fee No
151 0.08000% Fee No
152 0.01000% Fee No
153 0.08000% Fee No
154 0.01000% Fee No
155 0.08000% Fee No
156 0.08000% Fee No
157 0.08000% Fee No
158 0.01000% Fee No
159 0.01000% Fee No
160 0.08000% Fee No
161 0.08000% Fee No
162 0.10000% Fee No
163 0.01000% Fee No
164 0.08000% Fee No
165 0.08000% Fee No
166 0.08000% Fee No
167 0.01000% Fee No
168 0.08000% Fee No
169 0.08000% Fee No
170 0.08000% Fee No
171 0.08000% Fee No
172 0.01000% Fee No
173 0.08000% Fee No
174 0.01000% Fee No
175 0.08000% Fee No
176 0.08000% Fee No
177 0.01000% Fee No
178 0.01000% Fee No
179 0.01000% Fee No
180 0.01000% Leasehold No
Sequence Original Amortization (months) ARD Loan Grace Period Loan Group
-------- ------------------------------ -------- ------------ ----------
1 0 No 0 1
1.1 1
1.2 1
1.3 1
1.4 1
1.5 1
1.6 1
1.7 1
1.8 1
1.9 1
1.10 1
1.11 1
1.12 1
1.13 1
1.14 1
1.15 1
1.16 1
1.17 1
1.18 1
1.19 1
1.20 1
2 0 No 5 1
3 0 Xx 0 0
0 0 Xx 0 0
0 000 Xx 8 1
6 0 No 0 1
7 0 No 5 1
8 0 No 0 1
9 0 No 5 1
10 0 No 0 1
11 0 Xx 0 0
00 000 Xx 0 1
12.1 1
12.2 1
13 0 No 0 1
14 0 No 0 1
15 0 No 0 1
16 0 No 5 2
16.1 2
16.2 2
17 360 No 8 1
18 0 No 0 1
19 0 Xx 0 0
00 000 Xx 5 1
21 0 No 0 1
22 0 No 0 1
5 1
23 0 Yes 5 1
23.1 1
23.2 1
24 0 Yes 5 1
25 360 No 5 1
25.1 1
25.2 1
26 0 No 5 2
27 0 No 5 1
27.1 1
27.2 1
27.3 1
27.4 1
27.5 1
27.6 1
27.7 1
27.8 1
27.9 1
27.10 1
27.11 1
28 0 No 5 2
29 0 No 5 1
30 0 No 5 2
31 0 Xx 0 0
00 000 Xx 5 1
33 360 Xx 0 0
00 0 Xx 0 0
00 0 Xx 5 1
35.1 1
35.2 1
35.3 1
36 0 Xx 0 0
00 000 Xx 5 1
38 0 No 5 2
39 0 No 5 2
40 0 Xx 0 0
00 000 Xx 5 1
42 360 Xx 0 0
00 000 Xx 5 1
44 0 Xx 0 0
00 000 Xx 5 1
46 0 Xx 0 0
00 000 Xx 5 1
48 300 No 5 1
49 360 Xx 0 0
00 000 Xx 0 0
00 000 Xx 5 1
52 360 No 5 1
53 360 Xx 0 0
00 000 Xx 0 1
55 360 Xx 0 0
00 000 Xx 7 2
57 360 No 5 2
58 0 No 1
58.1 1
58.2 1
58.3 1
58.4 1
59 360 No 5 1
60 360 No 5 1
61 0 Xx 0 0
00 000 Xx 5 1
63 360 No 5 2
64 360 No 5 1
64.1 1
64.2 1
64.3 1
64.4 1
65 360 Xx 0 0
00 000 Xx 5 1
67 360 Xx 0 0
00 000 Xx 5 2
69 360 Xx 0 0
00 000 Xx 5 2
71 360 No 5 2
72 0 No 5 1
73 0 Xx 0 0
00 000 Xx 5 1
75 360 No 5 1
76 0 Xx 0 0
00 000 Xx 5 1
78 0 Xx 0 0
00 000 Xx 5 1
80 360 Xx 0 0
00 000 Xx 5 1
82 360 Xx 0 0
00 000 Xx 5 1
84 360 No 5 1
85 0 Xx 0 0
00 000 Xx 5 1
87 360 No 5 1
88 0 Yes 5 1
89 300 No 5 1
90 240 Xx 0 0
00 000 Xx 5 1
92 360 Xx 0 0
00 000 Xx 5 1
94 360 No 5 2
94.1 2
94.2 2
95 300 No 5 1
96 360 No 5 1
97 0 Xx 0 0
00 000 Xx 5 2
99 360 No 5 2
100 360 No 5 2
101 360 Xx 0 0
000 0 Xx 0 0
000 0 No 5 2
104 360 No 5 1
105 360 No 5 1
106 360 No 5 1
107 360 No 5 2
108 360 No 5 1
109 300 No 5 1
110 360 No 5 2
111 360 No 5 2
112 360 No 5 2
113 300 No 5 1
114 360 No 5 1
115 360 No 5 2
116 360 No 5 1
117 360 No 5 2
118 360 No 5 1
119 360 No 5 1
120 360 No 5 1
121 240 No 5 1
122 240 No 5 1
123 360 No 5 1
124 0 No 5 1
125 300 No 5 1
126 360 No 5 2
127 360 No 5 1
128 360 No 5 1
129 360 No 5 1
130 360 No 5 1
131 360 No 5 1
132 0 No 5 2
133 300 No 5 1
134 0 No 5 1
135 360 No 5 2
136 360 No 5 1
137 360 No 5 1
138 360 No 5 2
139 360 No 5 1
140 360 No 5 1
141 360 No 5 1
142 300 No 5 1
143 360 No 5 1
144 360 No 5 2
145 300 No 5 1
146 360 No 5 1
147 360 No 5 2
148 360 No 5 2
149 360 No 5 1
150 360 No 5 1
151 300 No 5 1
152 0 No 5 1
153 360 No 5 1
154 360 No 5 1
155 360 No 5 1
156 360 No 5 1
157 300 No 5 2
158 360 No 5 1
159 360 No 5 1
160 360 No 5 1
161 360 No 5 1
162 300 No 5 1
163 360 No 5 1
164 360 No 5 2
165 360 No 5 1
166 360 No 5 2
167 360 No 5 1
168 360 No 5 1
169 360 No 5 1
170 360 No 5 1
171 360 No 5 1
172 360 No 5 2
173 360 No 5 1
174 360 No 5 2
175 360 No 5 2
176 360 No 5 1
177 360 No 5 2
178 360 No 5 1
179 360 No 5 1
180 0 No 5 1
1) For mortgage loans which accrue interest on the basis of actual days
elapsed each calendar month and a 360-day year, the amortization term is
the term over which the mortgage loans would amortize if interest accrued
and was paid on the basis of a 360-day year consisting of twelve 30-day
months. The actual amortization would be longer.
2) Administrative Fee Rate includes the Master Servicer Fee Rate (including,
where applicable, the Xxxxxxx excess fees); the Trustee Fee Rate; and the
Primary Servicing Fee Rate (which, for some HFF, LJ Xxxxxx-GEMSA and
Xxxxxxxxx Capital serviced loans includes the subservicing fee).
SCHEDULE II
Sub-Servicing Agreements in Effect as of the Closing Date
1. Sub-Servicing Agreement, dated as of June 1, 2007, by and
between BANK OF AMERICA, NATIONAL ASSOCIATION, as Master Servicer, and Xxxxxxxx
Xxxxxxxx Xxxxxx, L.P., as Sub-Servicer.
2. Sub-Servicing Agreement, dated as of June 1, 2007 by and
between BANK OF AMERICA, NATIONAL ASSOCIATION, as Master Servicer, and MIDLAND
LOAN SERVICES, INC., as Sub-Servicer.
3. Sub-Servicing Agreement, dated as of June 1, 2007 by and
between BANK OF AMERICA, NATIONAL ASSOCIATION., as Master Servicer, CAPSTONE
REALTY ADVISORS, LLC, LAUREATE CAPITAL LLC, CBRE XXXXXX OF TEXAS, LP, COLLATERAL
REAL ESTATE CAPITAL, LLC, XXXXXXXXX CAPITAL, INC. and FINANCIAL FEDERAL SAVINGS
BANK, as Sub-Servicers.
SCHEDULE III
Schedule of Exceptions under Section 2.02(a)
Collateral Property Name Investor Alternate Loan Amount DocType Exception Exception Notation
ID ID Loan ID Description
Beacon Seattle & DC BSCMI 394,477,317.00 ALNV 01 MISSING BSCMI TO XXXXX
120072 Portfolio (Rollup) 51006
Beacon Seattle & DC BSCMI 394,477,317.00 MORT 01 MISSING [20 PROPERTIES:
120072 Portfolio (Rollup) 51006 1A-1T]
Beacon Seattle & DC BSCMI 394,477,317.00 NOTE 01 MISSING 394,477,317.00
120072 Portfolio (Rollup) 51006 [NOTE A-4]
Beacon Seattle & DC BSCMI 394,477,317.00 TPOL 01 MISSING [20 PROPERTIES:
120072 Portfolio (Rollup) 51006 1A-1T]
Grand D'Iberville BSCMI 11,550,000.00 TPOL 01 MISSING
4820072 47941
Georgetown Apartments BSCMI 11,381,325.00 TPOL 01 MISSING
4920072 00000
Xxxxxxxx'x Xxxxxxxx BSCMI 0.00 MORT 01 MISSING XX XXXXXXX
00X00000 00000 XXXXXXXX XX
ASSOCIATES, LLC
(S.E.) TO MERS
Super 8 - South Padre BSCMI 3,000,000.00 ALNV 02 DOCUMENT IS COPY, BSCMI TO XXXXX
14920072 Island 49410 NEED ORIGINAL
Parkway Chevrolet - BSCMI 7,925,000.00 NOTE 14 LOAN AMOUNT DOES NOTE:
7420072 Tomball 48225 NOT AGREE WITH $9,425,000.00
SCHEDULE SCHD:
$7,925,000.00
SCHEDULE IV
[Reserved]
SCHEDULE V
Mortgage Loans that Initially Pay Interest Only
LoanNumber PropertyName LoanTransaction Cutoff Balance Amortization Type IOPeriod
---------- --------------------------------------- --------------- -------------- ----------------------- --------
51006 Beacon Seattle & DC Portfolio BACM 2007-2 394,477,317.00 Interest Only 60
3405209 Xxx Xxxx Xxxxxx XXXX 0000-0 187,500,000.00 Interest Only 60
3403716 000 Xxxxxxxxx Xxxxxx BACM 2007-2 162,500,000.00 Interest Only 84
3403856 Xxxxxx Crossing BACM 2007-2 153,000,000.00 Interest Only 72
3404331 Connecticut Financial Center BACM 2007-2 130,400,000.00 Interest Only 120
59712 Valley River Center BACM 2007-2 120,000,000.00 Interest Only 120
3404620 000 Xxxx 00xx Xxxxxx BACM 2007-2 91,000,000.00 Interest Only 120
3402813 Xxxxxxxx Avenue Plaza BACM 2007-2 87,000,000.00 Interest Only 60
3404536 00 Xxxxx Xxxxx Xxxxxx XXXX 0000-0 76,200,000.00 Interest Only 60
3405764 Xxxxxxx Xxxxxxxx XXXX 0000-0 70,373,016.00 Interest Only 120
48595 Investcorp Industrial Portfolio BACM 2007-2 61,000,000.00 IO, Balloon 60
3405752 Fayette Pavilion III & IV BACM 2007-2 50,712,288.00 Interest Only 120
49394 Palm Beach Gardens Marriott BACM 2007-2 50,000,000.00 Interest Only 60
3405765 Sycamore Commons BACM 2007-2 48,381,600.00 Interest Only 120
49150 Austin Student Housing Portfolio BACM 2007-2 44,400,000.00 Interest Only 84
3405767 Xxxxxxxx Xxxxxxxx XXXX 0000-0 40,425,230.00 Interest Only 120
3405769 Pleasant Xxxx BACM 2007-2 30,458,783.00 Interest Only 120
3405771 River Ridge BACM 2007-2 28,116,029.00 Interest Only 120
3405757 Venture Pointe BACM 2007-2 25,818,322.00 Interest Only 120
3404260 The Xxxx at Salem Station BACM 2007-2 25,200,000.00 Interest Only 120
3404966 Xxxx Park Industrial Portfolio BACM 2007-2 24,650,000.00 Interest Only 120
3404479 Fairway Lakes BACM 2007-2 23,560,000.00 Interest Only 60
3404622 Xxxx Xxxxxxxx XXXX 0000-0 21,000,000.00 Interest Only 120
21502 Xxxxxxx Xxxxxxx Xxxx-00 XXXX 0000-0 21,000,000.00 Interest Only 120
3405758 Sand Lake Corners BACM 2007-2 20,708,572.00 Interest Only 120
20951 North Park Business Park Portfolio 2 BACM 2007-2 19,950,000.00 IO, Balloon 60
3405636 Grande View Apartments BACM 2007-2 18,640,000.00 Interest Only 60
3403935 Bakersfield Industrial Portfolio BACM 2007-2 17,500,000.00 Interest Only 60
3405774 City Crossing BACM 2007-2 17,417,561.00 Interest Only 120
3404478 Lakes of Xxxxx Apartments BACM 2007-2 16,000,000.00 Interest Only 60
3404481 Bent Tree Apartments BACM 2007-2 15,440,000.00 Interest Only 60
3405775 Columbiana Station II BACM 2007-2 15,296,764.00 Interest Only 120
49565 Davisville Shopping Center BACM 2007-2 14,600,000.00 IO, Balloon 60
3404189 Xxxxxxx Xxxxxx Xxxxxxxxxx XXXX 0000-0 13,300,000.00 IO, Balloon 24
3405761 Ward's Crossing BACM 2007-2 12,903,920.00 Interest Only 120
3404345 Xxxxxx Xxxxxx Xxxxxxxxxxx XXXX 0000-0 12,840,000.00 Interest Only 120
49148 Walgreen's Guaynabo & Eckerd McDonough BACM 2007-2 11,454,000.00 Interest Only, Hyper Am 123
49918 Georgetown Apartments BACM 2007-2 11,381,325.00 IO, Balloon 36
19986 Xxxxx Xxxx Apartments BACM 2007-2 11,000,000.00 IO, Balloon 24
00000 Xxxxxxx Xxxxxxxx Xxxxxx XXXX 0000-0 10,750,000.00 IO, Balloon 36
3402293 Richmond Industrial BACM 2007-2 10,500,000.00 IO, Balloon 48
00000 Xxxxx Xxxx Xxxxxxxx Xxxx Portfolio 1 BACM 2007-2 10,500,000.00 IO, Balloon 72
50037 Best Western Fort Xxxxx BACM 2007-2 10,400,000.00 IO, Balloon 48
49799 Radisson Phoenix BACM 2007-2 10,400,000.00 IO, Balloon 60
00000 Xxxx Xxxx Xxxxxx XXXX 0000-0 10,400,000.00 IO, Balloon 24
3403866 Simply Self Storage Portfolio BACM 2007-2 10,300,000.00 Interest Only 120
3405184 0000 Xxxxx Xxxxxxxxx BACM 2007-2 10,050,000.00 IO, Balloon 60
3405692 Park Place Xxxxx BACM 2007-2 10,000,000.00 IO, Balloon 60
3405763 Universal Plaza BACM 2007-2 9,887,151.00 Interest Only 120
23292 Xxxxxxxxx Xxxxxx Xxxxxxxxxx XXXX 0000-0 9,385,000.00 IO, Balloon 36
3405266 Premier Development Portfolio BACM 2007-2 9,200,000.00 IO, Balloon 12
20685 Storamerica El Monte BACM 2007-2 8,800,000.00 IO, Balloon 36
3405018 Parkwood Terrace BACM 2007-2 8,636,000.00 IO, Balloon 60
3405715 Xxxx Xxxxx Xxxxxxxxxx XXXX 0000-0 8,200,000.00 IO, Balloon 24
49754 Walgreen's Carolina BACM 2007-2 8,100,000.00 Interest Only, Hyper Am 120
3405525 Xxxxxxx Business Commons BACM 2007-2 8,075,000.00 Interest Only 120
3405165 Xxxx Ranch I BACM 2007-2 7,900,000.00 Interest Only 120
22486 Echelon BACM 2007-2 7,784,741.00 IO, Balloon 60
3405922 Value Store It BACM 2007-2 7,500,000.00 Interest Only 120
3405030 Xxxx International World Xxxxxxxxxxxx XXXX 0000-0 7,400,000.00 IO, Balloon 36
3405208 Boise Cascade - Florida BACM 2007-2 7,385,000.00 Interest Only 120
3404849 Xxxxxx Valley Corporate Center BACM 2007-2 6,900,000.00 IO, Balloon 60
22097 Village at Xxxxxxxx XXXX 0000-0 6,640,000.00 IO, Balloon 24
3404281 Xxxxxx Xxxxxx XXXX 0000-0 6,500,000.00 Interest Only 120
3405145 Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxxx XXXX 0000-0 6,300,000.00 IO, Balloon 36
00000 Xxxxxxx Xxxx Xxxxxx XXXX 0000-0 6,225,000.00 IO, Balloon 36
3405225 Best Buy - Burbank, IL BACM 2007-2 6,060,000.00 Interest Only, Hyper Am 120
21448 Xxxxxxxxxx Xxxxxxxxxxxx Xxxxxxxx XXXX 0000-0 5,900,000.00 IO, Balloon 24
49092 Rite Aid - Xxxxxxxxx and Xxxxxx BACM 2007-2 5,750,000.00 IO, Balloon 64
3405846 Xxxxxxxxxx xx Xxxxx Xxxxx Xxxxxxxx #0 XXXX 0000-0 5,700,000.00 IO, Balloon 60
3405714 Royale Apartments BACM 2007-2 5,640,000.00 Interest Only 120
23357 Xxxxxxxx Village BACM 2007-2 5,440,000.00 IO, Balloon 36
22705 Kingwood Forest BACM 2007-2 5,355,000.00 IO, Balloon 24
3405713 Xxx Xxxxx Apartments BACM 2007-2 5,250,000.00 IO, Balloon 24
3405263 Social Security Administration Building BACM 2007-2 5,230,000.00 Interest Only 120
3405483 Xxxx Xxxxxx Xxxxxxx - Xxxxxxx, XX BACM 2007-2 5,060,000.00 Interest Only 120
49504 Hilltop Shopping Center BACM 2007-2 5,000,000.00 IO, Xxxxxxx 00
00000 Xxxxx Xxxxxxxx Plaza BACM 2007-2 5,000,000.00 IO, Balloon 60
22242 Xxxxx Xxxx Xxxxxxxx Xxxxxx XXXX 0000-0 4,968,000.00 IO, Balloon 60
22168 Xxxxxxx Xxxxxxx Xxxxxxxxxx XXXX 0000-0 4,652,000.00 IO, Xxxxxxx 00
00000 Xxxxxx Apartments BACM 2007-2 4,600,000.00 IO, Balloon 36
3402711 000-000 Xxxx 00xx Xxxxxx XXXX 0000-0 4,160,000.00 IO, Balloon 36
22842 Xxxxxxxxxx Xxx 0 XXXX 0000-0 4,080,000.00 IO, Balloon 36
3405533 BofA Ground Lease - LaSalle & Grand BACM 2007-2 4,000,000.00 Interest Only 120
00000 Xxxx Xxxxxx Xxxxxxxx XXXX 0000-0 3,800,000.00 IO, Balloon 60
21375 Rancho Self Storage BACM 2007-2 3,600,000.00 IO, Balloon 36
3405707 Xxxx Estates BACM 2007-2 3,560,000.00 Interest Only 60
3405652 Valley Mall Frontage BACM 2007-2 3,550,000.00 Interest Only 120
49974 Eckerd - Xxxxxxx Street BACM 2007-2 3,487,000.00 IO, Balloon 60
50269 Rite Aid - McKeesport BACM 2007-2 3,300,000.00 IO, Balloon 60
00000 Xxxxxxxx Xxxxxxxxxxxx Xxxxx XXXX 0000-0 3,283,200.00 IO, Balloon 48
22968 Live Oak Retail BACM 2007-2 2,800,000.00 IO, Balloon 60
3405235 Apollo Beach Mini Storage BACM 2007-2 2,726,000.00 Interest Only 60
00000 Xxxxxx Xxxxxxx Xxxxxxxx Xxxx XXXX 0000-0 2,650,000.00 IO, Balloon 24
22552 000 Xxxxx 000 XXXX 0000-0 2,480,000.00 IO, Balloon 24
22675 Hearthstone Tumwater BACM 2007-2 2,340,000.00 IO, Balloon 60
19727 Xxxxxxx Xxxxxx Xxxxxxxx XXXX 0000-0 2,000,000.00 IO, Balloon 24
19429 Shoppes at Tappahannock BACM 2007-2 1,900,000.00 IO, Balloon 24
3404115 Xxxxxxx Xxxxxx Xxxxxxxxxx XXXX 0000-0 1,513,755.00 IO, Balloon 24
19759 Pacific Northwest Storage BACM 2007-2 1,475,000.00 IO, Balloon 24
3405733 Xxx Xxxxx Xxxxxx Xxxxxx XXXX 0000-0 1,288,000.00 IO, Balloon 60
3404728 Solana Beach Retail BACM 2007-2 1,150,000.00 Interest Only 120
LoanNumber Loan Group % of Loan Group % of Pool
---------- ---------- --------------- ---------
51006 1 14.9% 12.4%
3405209 1 7.1% 5.9%
3403716 1 6.1% 5.1%
3403856 2 28.9% 4.8%
3404331 1 4.9% 4.1%
59712 1 4.5% 3.8%
3404620 1 3.4% 2.9%
3402813 1 3.3% 2.7%
3404536 1 2.9% 2.4%
3405764 1 2.7% 2.2%
48595 1 2.3% 1.9%
3405752 1 1.9% 1.6%
49394 1 1.9% 1.6%
3405765 1 1.8% 1.5%
49150 2 8.4% 1.4%
3405767 1 1.5% 1.3%
3405769 1 1.2% 1.0%
3405771 1 1.1% 0.9%
3405757 1 1.0% 0.8%
3404260 2 4.8% 0.8%
3404966 1 0.9% 0.8%
3404479 2 4.5% 0.7%
3404622 1 0.8% 0.7%
21502 2 4.0% 0.7%
3405758 1 0.8% 0.7%
20951 1 0.8% 0.6%
3405636 2 3.5% 0.6%
3403935 1 0.7% 0.6%
3405774 1 0.7% 0.5%
3404478 2 3.0% 0.5%
3404481 2 2.9% 0.5%
3405775 1 0.6% 0.5%
49565 1 0.6% 0.5%
3404189 2 2.5% 0.4%
3405761 1 0.5% 0.4%
3404345 1 0.5% 0.4%
49148 1 0.4% 0.4%
49918 2 2.2% 0.4%
19986 2 2.1% 0.3%
49756 1 0.4% 0.3%
3402293 1 0.4% 0.3%
20554 1 0.4% 0.3%
50037 1 0.4% 0.3%
49799 1 0.4% 0.3%
23471 2 2.0% 0.3%
3403866 1 0.4% 0.3%
3405184 1 0.4% 0.3%
3405692 1 0.4% 0.3%
3405763 1 0.4% 0.3%
23292 2 1.8% 0.3%
3405266 1 0.3% 0.3%
20685 1 0.3% 0.3%
3405018 2 1.6% 0.3%
3405715 2 1.5% 0.3%
49754 1 0.3% 0.3%
3405525 1 0.3% 0.3%
3405165 1 0.3% 0.2%
22486 1 0.3% 0.2%
3405922 1 0.3% 0.2%
3405030 1 0.3% 0.2%
3405208 1 0.3% 0.2%
3404849 1 0.3% 0.2%
22097 1 0.3% 0.2%
3404281 1 0.2% 0.2%
3405145 1 0.2% 0.2%
20442 1 0.2% 0.2%
3405225 1 0.2% 0.2%
21448 1 0.2% 0.2%
49092 1 0.2% 0.2%
3405846 1 0.2% 0.2%
3405714 2 1.1% 0.2%
23357 2 1.0% 0.2%
22705 2 1.0% 0.2%
3405713 2 1.0% 0.2%
3405263 1 0.2% 0.2%
3405483 2 1.0% 0.2%
49504 1 0.2% 0.2%
21094 1 0.2% 0.2%
22242 1 0.2% 0.2%
22168 2 0.9% 0.1%
23247 2 0.9% 0.1%
3402711 1 0.2% 0.1%
22842 1 0.2% 0.1%
3405533 1 0.2% 0.1%
22484 1 0.1% 0.1%
21375 1 0.1% 0.1%
3405707 2 0.7% 0.1%
3405652 1 0.1% 0.1%
49974 1 0.1% 0.1%
50269 1 0.1% 0.1%
21443 1 0.1% 0.1%
22968 1 0.1% 0.1%
3405235 1 0.1% 0.1%
22420 1 0.1% 0.1%
22552 1 0.1% 0.1%
22675 2 0.4% 0.1%
19727 1 0.1% 0.1%
19429 1 0.1% 0.1%
3404115 2 0.3% 0.0%
19759 1 0.1% 0.0%
3405733 1 0.0% 0.0%
3404728 1 0.0% 0.0%
SCHEDULE VI
Mortgage Loans Containing Additional Debt
LoanNumber PropertyName LoanTransaction Cutoff Balance
---------- ------------------------------------- --------------- --------------
51006 Beacon Seattle & DC Portfolio BACM 2007-2 394,477,317.00
3405209 Xxx Xxxx Xxxxxx XXXX 0000-0 187,500,000.00
3403716 000 Xxxxxxxxx Xxxxxx BACM 2007-2 162,500,000.00
3403856 Xxxxxx Crossing BACM 2007-2 153,000,000.00
3404620 000 Xxxx 00xx Xxxxxx BACM 2007-2 91,000,000.00
0000000 Xxxxxxxx Xxxxxx Xxxxx XXXX 0000-0 87,000,000.00
3405764 Xxxxxxx Xxxxxxxx XXXX 0000-0 70,373,016.00
3405752 Fayette Pavilion III & IV BACM 2007-2 50,712,288.00
3405765 Sycamore Commons BACM 2007-2 48,381,600.00
00000 Xxxxxx Xxxxxxx Xxxxxxx Xxxxxxxxx XXXX 0000-0 44,400,000.00
3405767 Xxxxxxxx Xxxxxxxx XXXX 0000-0 40,425,230.00
3405769 Pleasant Xxxx BACM 2007-2 30,458,783.00
0000000 Xxxxx Xxxxx XXXX 0000-0 28,116,029.00
3405757 Venture Pointe BACM 2007-2 25,818,322.00
3404260 The Xxxx at Salem Station BACM 2007-2 25,200,000.00
00000 Xxxxxxx Xxxxxxx Xxxx-00 XXXX 0000-0 21,000,000.00
3405758 Sand Lake Corners BACM 2007-2 20,708,572.00
3405636 Xxxxxx Xxxx Xxxxxxxxxx XXXX 0000-0 18,640,000.00
0000000 Xxxx Xxxxxxxx BACM 2007-2 17,417,561.00
3405775 Columbiana Station II BACM 2007-2 15,296,764.00
3404189 Xxxxxxx Xxxxxx Xxxxxxxxxx XXXX 0000-0 13,300,000.00
3405761 Ward's Crossing BACM 2007-2 12,903,920.00
00000 Xxxxxxx Xxx Xxxxxx Xxxxx BACM 2007-2 12,862,523.11
00000 Xxxx Xxxx Xxxxxx XXXX 0000-0 10,400,000.00
3405763 Universal Xxxxx XXXX 0000-0 9,887,151.00
00000 Xxxxxxxxx Xxxxxx Xxxxxxxxxx XXXX 0000-0 9,385,000.00
20685 Storamerica El Monte BACM 2007-2 8,800,000.00
3402651 DTI- Xxxxx Xxxxx Xxxxx Xxxxxxxxxx XXXX 0000-0 8,164,471.36
48225 Parkway Chevrolet - Tomball BACM 2007-2 7,872,296.20
22486 Echelon BACM 2007-2 7,784,741.00
0000000 Xxxxx Xxxxxxx - Xxxxxxx BACM 2007-2 7,385,000.00
3402673 XXX- Xxxxxxx Xxxxxx Xxxxxxxxxx XXXX 0000-0 6,810,408.25
3402664 DTI- Xxxxxxxxxx Xxxx Xxxxxxxxxx XXXX 0000-0 5,874,575.12
3405846 Crossroads at Xxxxx Xxxxx Xxxxxxxx #0 XXXX 0000-0 5,700,000.00
3402666 DTI-Brazos Apartments BACM 2007-2 5,538,993.40
3402657 DTI- Scandia Apartments BACM 2007-2 4,928,668.94
3402659 XXX- Xxxxxxx Xxxxxxxxxx XXXX 0000-0 4,580,177.21
3402654 XXX- Xxxxxx Xxxxxxxxxx XXXX 0000-0 4,380,932.29
22842 Xxxxxxxxxx Xxx 0 XXXX 0000-0 4,080,000.00
3402658 DTI- Xxxxxx Xxxx Xxxxxxxxxx XXXX 0000-0 3,932,923.99
00000 Xxxx Xxxxxx Xxxxxxxx XXXX 0000-0 3,800,000.00
21375 Rancho Self Storage BACM 2007-2 3,600,000.00
3402663 DTI- Paper Moon Apartments BACM 2007-2 3,273,512.15
3402653 DTI- Xxx Xxxxxxx Xxxxxx Xxxxxxxxxx XXXX 0000-0 3,093,872.19
00000 Xxxxxx Xxxxxxx Xxxxxxxx Xxxx XXXX 0000-0 2,650,000.00
3400853 The Homestead BACM 2007-2 2,497,927.91
22552 000 Xxxxx 000 XXXX 0000-0 2,480,000.00
00000 Xxxxxxx Xxxxxxx XXX-XX XXXX 0000-0 2,193,709.77
19727 Xxxxxxx Xxxxxx Xxxxxxxx XXXX 0000-0 2,000,000.00
22599 Stars & Stripes Storage BACM 2007-2 1,695,645.70
3402661 XXX- Xxxxxxxx Xxxxxxxxxx XXXX 0000-0 1,468,627.10
3405306 Xxxxxxxxxx Xxxxxxxxx Xxxxxxxxxx XXXX 0000-0 1,397,268.00
LoanNumber Existing Additional Debt
---------- ------------------------
51006 Yes
3405209 Yes
3403716 Yes
3403856 No
3404620 Yes
3402813 Yes
3405764 No
3405752 No
3405765 No
49150 Yes
3405767 No
3405769 No
3405771 No
3405757 No
3404260 No
21502 Yes
3405758 No
3405636 Yes
3405774 No
3405775 No
3404189 Yes
3405761 No
00000 Xx
00000 No
3405763 No
23292 Yes
20685 No
3402651 No
48225 Yes
22486 No
3405208 No
3402673 No
3402664 No
3405846 No
3402666 No
3402657 No
3402659 No
3402654 No
22842 No
3402658 No
00000 Xx
00000 No
3402663 No
3402653 No
22420 No
3400853 No
00000 Xx
00000 No
19727 Yes
22599 No
3402661 No
3405306 No
LoanNumber Existing Additional Debt Amount
---------- -----------------------------------------------------------------------------------------------
51006 Pari-passu debt - 2,644,000,000; Subordinate debt - 56,000,000 Crossed Mezz Debt - 205,000,000;
Additional Debt on Cash Flow Assets - 339,177,299
3405209 262,900,000
3403716 162,500,000
3403856 0
3404620 17,000,000
3402813 10,000,000
3405764 0
3405752 0
3405765 0
49150 7,250,000
3405767 0
3405769 0
3405771 0
3405757 0
3404260 0
21502 750,000
3405758 0
3405636 2,500,000
3405774 0
3405775 0
3404189 4,200,000
3405761 0
23195
23471
3405763 0
23292 450,000
20685
3402651 0
48225 1,500,000
22486
3405208 0
3402673 0
3402664 0
3405846 0
3402666 0
3402657 0
3402659 0
3402654 0
22842
3402658 0
22484
21375
3402663 0
3402653 0
22420
3400853 0
22552
16464
19727 180,000
22599
3402661 0
3405306 0
LoanNumber Existing Additional Debt Description
---------- -----------------------------------------------------------------------------------------------
51006 Pari-passu debt - 2,644,000,000; Subordinate debt - 56,000,000 Crossed Mezz Debt - 205,000,000;
Additional Debt on Cash Flow Assets - 339,177,299
3405209 Pari Passu (A-2 $187,500,000) Mezzanine ($75,400,000)
3403716 Pari Passu (A-1 $162,500,000)
3403856
3404620 Mezzanine
3402813 Mezzanine
3405764
3405752
3405765
49150 Mezzanine Debt
3405767
3405769
3405771
3405757
3404260
21502 Subordinate Secured
3405758
3405636 Mezzanine
3405774
3405775
3404189 Mezzanine
3405761
23195
23471
3405763
23292 Subordinate Secured
20685
3402651
48225 B-Note
22486
3405208
3402673
3402664
3405846
3402666
3402657
3402659
3402654
22842
3402658
22484
21375
3402663
3402653
22420
3400853
00000
00000
00000 Subordinate Secured
22599
3402661
3405306
LoanNumber Future Debt Permitted? Future Debt Amount Permitted
---------- ---------------------- -------------------------------------------------------------------
51006 No
3405209 Yes $32,600,000
3403716 Yes LTV <= 80%, DSCR >= 1.25x
3403856 Yes LTV <= 80%, DSCR >= 1.10x
3404620 No
3402813 No
3405764 Yes LTV <= 75%, DSCR >= 1.20x
3405752 Yes LTV <= 75%, DSCR >= 1.20x
3405765 Yes LTV <= 75%, DSCR >= 1.20x
49150 No
3405767 Yes LTV <= 75%, DSCR >= 1.20x
3405769 Yes LTV <= 75%, DSCR >= 1.20x
3405771 Yes LTV <= 75%, DSCR >= 1.20x
3405757 Yes LTV <= 75%, DSCR >= 1.20x
3404260 Yes LTV <= 85%, DSCR >= 1.10x
21502 No
3405758 Yes LTV <= 75%, DSCR >= 1.20x
3405636 No
3405774 Yes LTV <= 75%, DSCR >= 1.20x
3405775 Yes LTV <= 75%; DSCR >=1.20x
3404189 No
3405761 Yes LTV <= 75%, DSCR >= 1.20x
23195 Yes LTV <= 75%, DSCR >= 1.30x
23471 Yes After 18 months from securitization, LTV <= 85%, DSCR >= 1.10x
3405763 Yes LTV <= 75%, DSCR >= 1.20x
23292 No
20685 Yes After expiration of Holdback Release Period occurring no later than
24 months after date of Note, LTV <= 80%, DSCR >= 1.20x
3402651 Yes After two years from closing, LTV <= 80%, DSCR >= 1.20x
00000 Xx
00000 Yes After 36 months from securitization, LTV <= 85%, DSCR >= 1.10x
3405208 Yes LTV <= 80%, DSCR >= 1.15x
3402673 Yes After two years from closing, LTV <= 80%, DSCR >= 1.20x
3402664 Yes After two years from closing, LTV <= 80%, DSCR >= 1.20x
3405846 Yes LTV <= 71%, DSCR >= 1.20x
3402666 Yes After two years from closing, LTV <= 80%, DSCR >= 1.20x
3402657 Yes After two years from closing, LTV <= 80%, DSCR >= 1.20x
3402659 Yes After two years from closing, LTV <= 80%, DSCR >= 1.20x
3402654 Yes After two years from closing, LTV <= 80%, DSCR >= 1.20x
22842 Yes After 36 months from securitization, LTV <= 85%, DSCR >= 1.10x
3402658 Yes After two years from closing, LTV <= 80%, DSCR >= 1.20x
22484 Yes After 36 months from securitization, LTV <= 85%, DSCR >= 1.10x
21375 Yes After 12 months from securitization, LTV <= 80%, DSCR >= 1.20x
3402663 Yes After two years from closing, LTV <= 80%, DSCR >= 1.20x
3402653 Yes After two years from closing, LTV <= 80%, DSCR >= 1.20x
22420 Yes After 36 months from securitization, LTV <= 70%, DSCR >= 1.30x
3400853 Yes After two years from closing date, LTV <= 70%, DSCR >= 1.40x
22552 Yes After 24 months from securitization, LTV<=80%, DSCR>=1.20x
16464 Yes After 36 months from securitization, LTV <= 75%, DSCR >= 1.30x
00000 Xx
00000 Yes After 24 months from Securitization, LTV <= 80%, DSCR >= 1.20x
3402661 Yes After two years from closing, LTV <= 80%, DSCR >= 1.20x
3405306 Yes After two years from closing, LTV <= 80%, DSCR >= 1.20x
LoanNumber Future Debt Description Loan Group % of Loan Group % of Pool
---------- ------------------------------------------------------- ---------- --------------- ---------
51006 1 14.9% 12.4%
3405209 Mezzanine 1 7.1% 5.9%
3403716 Mezzanine 1 6.1% 5.1%
3403856 Mezzanine 2 28.9% 4.8%
3404620 1 3.4% 2.9%
3402813 1 3.3% 2.7%
3405764 Mezzanine 1 2.7% 2.2%
3405752 Mezzanine 1 1.9% 1.6%
3405765 Mezzanine 1 1.8% 1.5%
49150 2 8.4% 1.4%
3405767 Mezzanine 1 1.5% 1.3%
3405769 Mezzanine 1 1.2% 1.0%
3405771 Mezzanine 1 1.1% 0.9%
3405757 Mezzanine 1 1.0% 0.8%
3404260 Mezzanine 2 4.8% 0.8%
21502 2 4.0% 0.7%
3405758 Mezzanine 1 0.8% 0.7%
3405636 2 3.5% 0.6%
3405774 Mezzanine 1 0.7% 0.5%
3405775 Mezzanine 1 0.6% 0.5%
3404189 2 2.5% 0.4%
3405761 Mezzanine 1 0.5% 0.4%
23195 Subordinate Secured 1 0.5% 0.4%
23471 Subordinate Secured 2 2.0% 0.3%
3405763 Mezzanine 1 0.4% 0.3%
23292 2 1.8% 0.3%
20685 Subordinate Secured 1 0.3% 0.3%
3402651 Mezzanine 2 1.5% 0.3%
48225 1 0.3% 0.2%
22486 Subordinate Secured 1 0.3% 0.2%
3405208 Mezzanine 1 0.3% 0.2%
3402673 Mezzanine 2 1.3% 0.2%
3402664 Mezzanine 2 1.1% 0.2%
3405846 Mezzanine 1 0.2% 0.2%
3402666 Mezzanine 2 1.0% 0.2%
3402657 Mezzanine 2 0.9% 0.2%
3402659 Mezzanine 2 0.9% 0.1%
3402654 Mezzanine 2 0.8% 0.1%
22842 Subordinate Secured 1 0.2% 0.1%
3402658 Mezzanine 2 0.7% 0.1%
22484 Subordinate Secured 1 0.1% 0.1%
21375 Subordinate Secured 1 0.1% 0.1%
3402663 Mezzanine 2 0.6% 0.1%
3402653 Mezzanine 2 0.6% 0.1%
22420 Subordinate Secured, Subordinate Unsecured or Mezzanine 1 0.1% 0.1%
3400853 Mezzanine 1 0.1% 0.1%
22552 Subordinate Secured 1 0.1% 0.1%
16464 Subordinate Secured 2 0.4% 0.1%
19727 1 0.1% 0.1%
22599 Subordinate Secured or Subordinate Unsecured 1 0.1% 0.1%
3402661 Mezzanine 2 0.3% 0.0%
3405306 Mezzanine 2 0.3% 0.0%
SCHEDULE VII
Schedule of Initial Controlling Holders and Operating Advisors
(1) The initial Beacon Seattle & DC Portfolio Operating Advisor is Centerline
REIT Inc., 0000 X. X'Xxxxxx Xxxx., Xxxxx 000, Xxxxxx, Xxxxx 00000,
Attention: Xxxxx Xxxxxxx, facsimile number (000) 000 0000.
(2) The initial 000 Xxxxxxxxx Xxxxxx Pari Passu Note A-1 Holder is LaSalle
Bank National Association, as Trustee for the registered holders of Banc
of America Commercial Mortgage Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-2, at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000, Attention: Global Securities and Trust Services
Group - Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-2, telecopy number: (312)
904-2084.
(3) The initial One Park Avenue Companion Loan Holder is Bank of America,
National Association, 000 Xxxxx Xxxxx Xxxxxx, XX0-000-00-00, Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000, attention of Xxxxxxx X. Xxxxx, with a copy to Xxxx
X. Xxxxxxx, Esq., Assistant General Counsel, at Bank of America Corporate
Center, 000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx, XX0-000-00-00, Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000, and with a copy to Xxxxx X. XxXxxx, Esq.,
Xxxxxxxxxx Xxxxxxxxxx & Xxxx LLP, 000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000.
(4) The initial Parkway Chevrolet-Tomball Controlling Holder is Bear Xxxxxxx
Commercial Mortgage, Inc. 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: J. Xxxxxxxxxxx Xxxxxxx telecopy number: (000) 000-0000.
SCHEDULE VIII
Servicing Criteria to be Addressed in Assessment of Compliance
The assessment of compliance to be delivered shall address, at a
minimum, the criteria identified below as "Relevant Servicing Criteria", as such
criteria may be expanded, limited or otherwise updated by the Commission or its
staff (including, without limitation, not requiring delivery of certain of the
items set forth on this schedule based on interpretive guidance relating to Item
1122 of Regulation AB provided by the Commission or its staff:
-------------------------------------------------------------------------------------------------------------
Applicable
Relevant Servicing Criteria Party(ies)
-------------------------------------------------------------------------------------------------------------
Reference Criteria
-------------------------------------------------------------------------------------------------------------
General Servicing Considerations
------------------ ------------------
------------------ ------------------
1122(d)(1)(i) Policies and procedures are instituted to monitor any performance or Trustee
Master Servicer
other triggers and events of default in accordance with the transaction Special Servicer
agreements. Primary Servicer
------------------ ------------------
1122(d)(1)(ii) Trustee
If any material servicing activities are outsourced to third parties, Master Servicer
policies and procedures are instituted to monitor the third party's Special Servicer
performance and compliance with such servicing activities. Primary Servicer
------------------ ------------------
N/A
Any requirements in the transaction agreements to maintain a back-up
1122(d)(1)(iii) servicer for the mortgage loans are maintained.
------------------ ------------------
Trustee
A fidelity bond and errors and omissions policy is in effect on the Master Servicer
party participating in the servicing function throughout the reporting Special Servicer
period in the amount of coverage required by and otherwise in Primary Servicer
1122(d)(1)(iv) accordance with the terms of the transaction agreements.
------------------ ------------------
Cash Collection and Administration
------------------ ------------------
1122(d)(2)(i) Trustee
Payments on mortgage loans are deposited into the appropriate custodial Master Servicer
bank accounts and related bank clearing accounts no more than two Special Servicer
business days following receipt, or such other number of days specified Primary Servicer
in the transaction agreements.
------------------ ------------------
Trustee
Disbursements made via wire transfer on behalf of an obligor or to an
1122(d)(2)(ii) investor are made only by authorized personnel.
------------------ ------------------
Master Servicer
Advances of funds or guarantees regarding collections, cash flows or (only with
distributions, and any interest or other fees charged for such respect to
advances, are made, reviewed and approved as specified in the transactions for
transaction agreements. which the
related
transaction
agreements
specifically
require it to
advance property
protection or
payments of
interest and/or
principal)
Special Servicer
1122(d)(2)(iii) Trustee
------------------ ------------------
Trustee
The related accounts for the transaction, such as cash reserve accounts Master Servicer
or accounts established as a form of overcollateralization, are Special Servicer
separately maintained (e.g., with respect to commingling of cash) as Primary Servicer
1122(d)(2)(iv) set forth in the transaction agreements.
------------------ ------------------
Trustee
Each custodial account is maintained at a federally insured depository Master Servicer
institution as set forth in the transaction agreements. For purposes of Special Servicer
this criterion, "federally insured depository institution" with respect Primary Servicer
to a foreign financial institution means a foreign financial
institution that meets the requirements of Rule 13k-1(b)(1) of the
1122(d)(2)(v) Securities Exchange Act.
------------------ ------------------
Master Servicer
Unissued checks are safeguarded so as to prevent unauthorized access. Special Servicer
Trustee
1122(d)(2)(vi) Primary Servicer
------------------ ------------------
Reconciliations are prepared on a monthly basis for all asset-backed Trustee
securities related bank accounts, including custodial accounts and Master Servicer
related bank clearing accounts. These reconciliations are (A) Special Servicer
mathematically accurate; (B) prepared within 30 calendar days after the Primary Servicer
bank statement cutoff date, or such other number of days specified in
the transaction agreements; (C) reviewed and approved by someone other
than the person who prepared the reconciliation; and (D) contain
explanations for reconciling items. These reconciling items are
resolved within 90 calendar days of their original identification, or
1122(d)(2)(vii) such other number of days specified in the transaction agreements.
------------------ ------------------
Investor Remittances and Reporting
------------------ ------------------
Trustee
Reports to investors, including those to be filed with the Commission,
are maintained in accordance with the transaction agreements and
applicable Commission requirements. Specifically, such reports (A) are
prepared in accordance with timeframes and other terms set forth in the
transaction agreements; (B) provide information calculated in
accordance with the terms specified in the transaction agreements; (C)
are filed with the Commission as required by its rules and regulations;
and (D) agree with investors' or the trustee's records as to the total
unpaid principal balance and number of mortgage loans serviced by the
1122(d)(3)(i) Servicer.
------------------ ------------------
Trustee
Amounts due to investors are allocated and remitted in accordance with
timeframes, distribution priority and other terms set forth in the
1122(d)(3)(ii) transaction agreements.
------------------ ------------------
Trustee
Disbursements made to an investor are posted within two business days
to the Servicer's investor records, or such other number of days
1122(d)(3)(iii) specified in the transaction agreements.
------------------ ------------------
Trustee
Amounts remitted to investors per the investor reports agree with
cancelled checks, or other form of payment, or custodial bank
1122(d)(3)(iv) statements.
------------------ ------------------
Pool Asset Administration
------------------ ------------------
Trustee
Collateral or security on mortgage loans is maintained as required by Master Servicer
the transaction agreements or related mortgage loan documents. Special Servicer
1122(d)(4)(i) Primary Servicer
------------------ ------------------
Trustee
Mortgage loan and related documents are safeguarded as required by the
1122(d)(4)(ii) transaction agreements.
------------------ ------------------
Trustee
Any additions, removals or substitutions to the asset pool are made, Master Servicer
reviewed and approved in accordance with any conditions or requirements Special Servicer
1122(d)(4)(iii) in the transaction agreements. Primary Servicer
------------------ ------------------
Master Servicer
Payments on mortgage loans, including any payoffs, made in accordance Primary Servicer
with the related mortgage loan documents are posted to the Servicer's
obligor records maintained no more than two business days after
receipt, or such other number of days specified in the transaction
agreements, and allocated to principal, interest or other items (e.g.,
1122(d)(4)(iv) escrow) in accordance with the related mortgage loan documents.
------------------ ------------------
Master Servicer
The Servicer's records regarding the mortgage loans agree with the Primary Servicer
Servicer's records with respect to an obligor's unpaid principal
1122(d)(4)(v) balance.
------------------ ------------------
Master Servicer
Changes with respect to the terms or status of an obligor's mortgage Special Servicer
loans (e.g., loan modifications or re-agings) are made, reviewed and Primary Servicer
approved by authorized personnel in accordance with the transaction
1122(d)(4)(vi) agreements and related pool asset documents.
------------------ ------------------
Special Servicer
Loss mitigation or recovery actions (e.g., forbearance plans,
modifications and deeds in lieu of foreclosure, foreclosures and
repossessions, as applicable) are initiated, conducted and concluded in
accordance with the timeframes or other requirements established by the
1122(d)(4)(vii) transaction agreements.
------------------ ------------------
Master Servicer
Records documenting collection efforts are maintained during the period (only for the
a mortgage loan is delinquent in accordance with the transaction period prior to
agreements. Such records are maintained on at least a monthly basis, or a servicing
such other period specified in the transaction agreements, and describe transfer event
the entity's activities in monitoring delinquent mortgage loans (as defined in
including, for example, phone calls, letters and payment rescheduling the transaction
plans in cases where delinquency is deemed temporary (e.g., illness or agreements))
unemployment). Special Servicer
1122(d)(4)(viii) Primary Servicer
------------------ ------------------
Master Servicer
Adjustments to interest rates or rates of return for mortgage loans Primary Servicer
with variable rates are computed based on the related mortgage loan
1122(d)(4)(ix) documents.
------------------ ------------------
Master Servicer
Regarding any funds held in trust for an obligor (such as escrow Primary Servicer
accounts): (A) such funds are analyzed, in accordance with the
obligor's mortgage loan documents, on at least an annual basis, or such
other period specified in the transaction agreements; (B) interest on
such funds is paid, or credited, to obligors in accordance with
applicable mortgage loan documents and state laws; and (C) such funds
are returned to the obligor within 30 calendar days of full repayment
of the related mortgage loans, or such other number of days specified
1122(d)(4)(x) in the transaction agreements.
------------------ ------------------
Master Servicer
Payments made on behalf of an obligor (such as tax or insurance Primary Servicer
payments) are made on or before the related penalty or expiration
dates, as indicated on the appropriate bills or notices for such
payments, provided that such support has been received by the servicer
at least 30 calendar days prior to these dates, or such other number of
1122(d)(4)(xi) days specified in the transaction agreements.
------------------ ------------------
Master Servicer
Any late payment penalties in connection with any payment to be made on Primary Servicer
behalf of an obligor are paid from the servicer's funds and not charged
to the obligor, unless the late payment was due to the obligor's error
1122(d)(4)(xii) or omission.
------------------ ------------------
Master Servicer
Disbursements made on behalf of an obligor are posted within two Primary Servicer
business days to the obligor's records maintained by the servicer, or
1122(d)(4)(xiii) such other number of days specified in the transaction agreements.
------------------ ------------------
Master Servicer
Delinquencies, charge-offs and uncollectible accounts are recognized Primary Servicer
1122(d)(4)(xiv) and recorded in accordance with the transaction agreements.
------------------ ------------------
N/A
Any external enhancement or other support, identified in Item
1114(a)(1) through (3) or Item 1115 of Regulation AB, is maintained as
1122(d)(4)(xv) set forth in the transaction agreements.
-------------------------------------------------------------------------------------------------------------
SCHEDULE IX
Additional Form 10-D Disclosure
The parties identified in the "Party Responsible" column are obligated pursuant
to Section 11.4 of the Pooling and Servicing Agreement to disclose to the
Depositor and the Trustee any information described in the corresponding Form
10-D Item described in the "Item on Form 10-D" column to the extent such party
has actual knowledge (and in the case of financial statements required to be
provided in connection with Item 6 below, possession) of such information (other
than information as to itself).
-------------------------------------------------- -----------------------------------------------------------
Item on Form 10-D Party Responsible
-------------------------------------------------- -----------------------------------------------------------
Item 1A: Distribution and Pool Performance o Master Servicer
Information: o Trustee
o Item 1121(a)(13) of Regulation AB
-------------------------------------------------- -----------------------------------------------------------
Item 1B: Distribution and Pool Performance o Trustee
Information: o Depositor
o Item 1121 (a)(14) of Regulation AB
-------------------------------------------------- -----------------------------------------------------------
Item 2: Legal Proceedings: o Master Servicer (as to itself)
o Item 1117 of Regulation AB (to the extent o Special Servicer (as to itself)
material to Certificateholders) o Trustee (as to itself)
o Depositor (as to itself)
o Primary Servicer (as to itself)
o Any other Reporting Servicer (as to itself)
o Trustee/Master Servicer/Depositor/Special Servicer
as to the Trust in the case of the Master Servicer
and Special Servicer, to be reported by the party
controlling such litigation pursuant to Section
3.32.
o Each Seller as sponsor (as defined in Regulation
AB)
o Originators under Item 1110 of Regulation AB
o Party under Item 1100(d)(1) of Regulation AB
-------------------------------------------------- -----------------------------------------------------------
Item 3: Sale of Securities and Use of Proceeds o Depositor
-------------------------------------------------- -----------------------------------------------------------
Item 4: Defaults Upon Senior Securities o Trustee
-------------------------------------------------- -----------------------------------------------------------
Item 5: Submission of Matters to a Vote of o Trustee
Security Holders
-------------------------------------------------- -----------------------------------------------------------
Item 6: Significant Obligors of Pool Assets o Depositor
o Sponsor
o Mortgage Loan Seller
o Master Servicer
o Primary Servicer (as to loans serviced by it)
-------------------------------------------------- -----------------------------------------------------------
Item 7: Significant Enhancement Provider o Depositor
Information
-------------------------------------------------- -----------------------------------------------------------
Item 8: Other Information (information required o Trustee
to be disclosed on Form 8-K that was not properly o Any other party responsible for disclosure items
disclosed) on Form 8-K
-------------------------------------------------- -----------------------------------------------------------
Item 9: Exhibits o Depositor
o Master Servicer
o Trustee
o Primary Servicer
-------------------------------------------------- -----------------------------------------------------------
SCHEDULE X
Additional Form 10-K Disclosure
The parties identified in the "Party Responsible" column are obligated pursuant
to Section 11.5 of the Pooling and Servicing Agreement to disclose to the
Depositor and the Trustee any information described in the corresponding Form
10-K Item described in the "Item on Form 10-K" column to the extent such party
has actual knowledge (and in the case of financial statements required to be
provided in connection with 1112(b) below, possession) of such information
(other than information as to itself).
--------------------------------------------------- -----------------------------------------------------------
Item on Form 10-K Party Responsible
--------------------------------------------------- -----------------------------------------------------------
Item 1B: Unresolved Staff Comments o Depositor
--------------------------------------------------- -----------------------------------------------------------
Item 9B: Other Information (information required o Trustee
to be disclosed on Form 8-K that was not properly o Any other party responsible for disclosure items on
disclosed) Form 8-K
--------------------------------------------------- -----------------------------------------------------------
Item 15: Exhibits, Financial Statement Schedules o Trustee
o Depositor
--------------------------------------------------- -----------------------------------------------------------
Additional Item: o Master Servicer (as to itself)
o Special Servicer (as to itself)
Disclosure per Item 1117 of Regulation AB (to the o Trustee (as to itself)
extent material to Certificateholders) o Depositor (as to itself)
o Primary Servicer (as to itself)
o Any other Reporting Servicer (as to itself)
o Trustee/Master Servicer/Depositor/Special Servicer
as to the Trust in the case of the Master Servicer
and Special Servicer, to be reported by the party
controlling such litigation pursuant to Section
3.32.
o Each Seller as sponsor (as defined in Regulation AB)
o Originators under Item 1110 of Regulation AB
o Party under Item 1100(d)(1) of Regulation AB
--------------------------------------------------- -----------------------------------------------------------
Additional Item: o Master Servicer (as to itself)
Disclosure per Item 1119 of Regulation AB o Special Servicer (as to itself) (to the extent
material to Certificateholders and only as to
affiliations under 1119(a))
o Trustee (as to itself)
o Depositor (as to itself)
o Primary Servicer (as to itself)
o Trustee/Master Servicer/Depositor/Special Servicer
as to the Trust
o Each Seller as sponsors (as defined in Regulation
AB)
o Originators under Item 1110 of Regulation AB
o Party under Item 1100(d)(1) of Regulation AB
--------------------------------------------------- -----------------------------------------------------------
Additional Item: o Depositor
Disclosure per Item 1112(b) of Regulation AB o Each Seller as sponsor (as defined in Regulation
AB)
o Master Servicer
--------------------------------------------------- -----------------------------------------------------------
Additional Item: o Depositor
Disclosure per Items 1114(b)(2) and 1115(b) of o Master Servicer
Regulation AB
--------------------------------------------------- -----------------------------------------------------------
SCHEDULE XI
Form 8-K Disclosure Information
The parties identified in the "Party Responsible" column are obligated pursuant
to Section 11.7 of the Pooling and Servicing Agreement to report to the
Depositor and the Trustee the occurrence of any event described in the
corresponding Form 8-K Item described in the "Item on Form 8-K" column to the
extent such party has actual knowledge of such information (other than
information as to itself).
--------------------------------------------------- ------------------------------------------------------
Item on Form 8-K Party Responsible
--------------------------------------------------- ------------------------------------------------------
Item 1.01- Entry into a Material Definitive All parties (only as to the agreements such
Agreement entity is a party to or entered into on behalf
of the Trust)
--------------------------------------------------- ------------------------------------------------------
Item 1.02- Termination of a Material Definitive All parties (only as to the agreements such
Agreement entity is a party to or entered into on behalf
of the Trust)
--------------------------------------------------- ------------------------------------------------------
Item 1.03- Bankruptcy or Receivership o Depositor
--------------------------------------------------- ------------------------------------------------------
Item 2.04- Triggering Events that Accelerate or o Depositor
Increase a Direct Financial Obligation or an
Obligation under an Off-Balance Sheet Arrangement
--------------------------------------------------- ------------------------------------------------------
Item 3.03- Material Modification to Rights of
Security Holders o Trustee
--------------------------------------------------- ------------------------------------------------------
Item 5.03- Amendments of Articles of Incorporation o Depositor
or Bylaws; Change of Fiscal Year
--------------------------------------------------- ------------------------------------------------------
Item 6.01- ABS Informational and Computational o Depositor
Material
--------------------------------------------------- ------------------------------------------------------
Item 6.02- Change of Servicer or Trustee o Master Servicer
o Special Servicer (as to itself or a servicer
retained by it)
o Primary Servicer
o Trustee
o Depositor
--------------------------------------------------- ------------------------------------------------------
Item 6.03- Change in Credit Enhancement or External o Depositor
Support o Trustee
--------------------------------------------------- ------------------------------------------------------
Item 6.04- Failure to Make a Required Distribution o Trustee
--------------------------------------------------- ------------------------------------------------------
Item 6.05- Securities Act Updating Disclosure o Depositor
--------------------------------------------------- ------------------------------------------------------
Item 7.01- Regulation FD Disclosure o Depositor
--------------------------------------------------- ------------------------------------------------------
Item 8.01 o Depositor
--------------------------------------------------- ------------------------------------------------------
Item 9.01 o Depositor
o Master Servicer
o Primary Servicer
--------------------------------------------------- ------------------------------------------------------
SCHEDULE XII
Form of Additional Disclosure Notification
**SEND VIA FAX TO (000) 000-0000 AND VIA OVERNIGHT MAIL TO XXXXX FARGO
AND BANK OF AMERICA AT THE ADDRESSES IMMEDIATELY BELOW**
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Corporate Trust Services (CMBS), Banc of America Commercial
Mortgage Inc., Commercial Mortgage Pass-Through Certificates, Series
2007-2
Banc of America Commercial Mortgage Inc.
000 Xxxxx Xxxxx Xxxxxx, XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
RE: **Additional Form [10-D][10-K][8-K] Disclosure** Required
Ladies and Gentlemen:
In accordance with Section [_] of the pooling and servicing
agreement, dated as of November 1, 2006 (the "Pooling and Servicing Agreement"),
by and among Banc of America Commercial Mortgage Inc. (the "Company"), as
depositor, Bank of America, National Association, as master servicer, LNR
Partners, Inc., as Special Servicer, and Xxxxx Fargo Bank, N.A., as Trustee and
REMIC Administrator. The undersigned, as [_], hereby notifies you that certain
events have come to our attention that [will] [may] need to be disclosed on Form
[10-D][10-K][8-K].
Description of Additional Form [10-D][10-K][8-K] Disclosure:
------------------------------------------------------------
List of any Attachments hereto to be included in the Additional Form
--------------------------------------------------------------------
[10-D][10-K][8-K] Disclosure:
----------------------------
Any inquiries related to this notification should be directed to
[__________________________-____], phone number: [_________________];
email address: [__________________________].
[NAME OF PARTY],
as [role]
By: ___________________________________
Name:
Title:
cc: Depositor
SCHEDULE XIII
Schedule of Tenant-in-Common Loans
--------------------------------------------------------------------------------------------------------------------------------
Loan Loan TIC % of Loan
Number Property Name Originator Cut-off Date Balance($) Structure % of Pool Group
--------------------------------------------------------------------------------------------------------------------------------
49150 Austin Student Housing Portfolio BSCMI 44,400,000.00 Yes 1.4% 8.4%
00000 Xxxxx Xxxx Xxxxxxxx Xxxx Portfolio 2 Xxxxxxx 19,950,000.00 Yes 0.6% 0.8%
23195 Holiday Inn Tinton Falls Xxxxxxx 12,862,523.11 Yes 0.4% 0.5%
49918 Georgetown Apartments BSCMI 11,381,325.00 Yes 0.4% 2.2%
00000 Xxxxx Xxxx Xxxxxxxx Xxxx Portfolio 1 Xxxxxxx 10,500,000.00 Yes 0.3% 0.4%
49799 Radisson Phoenix BSCMI 10,400,000.00 Yes 0.3% 0.4%
3405030 Xxxx International World Headquarters Bank of America 7,400,000.00 Yes 0.2% 0.3%
3404849 Xxxxxx Valley Corporate Center Bank of America 6,900,000.00 Yes 0.2% 0.3%
00000 Xxxxxxxx Xxxxxxx Xxxxxxx 5,440,000.00 Yes 0.2% 1.0%
21094 Royal Montreal Plaza Xxxxxxx 5,000,000.00 Yes 0.2% 0.2%
22552 000 Xxxxx 000 Xxxxxxx 2,480,000.00 Yes 0.1% 0.1%
3404728 Solana Beach Retail Bank of America 1,150,000.00 Yes 0.0% 0.0%
SCHEDULE XIV
Schedule of Earnout and Holdback Loans
Loan
Loan Number Property Name Originator Cut-off Date Balance Earnout / Holdback
-----------------------------------------------------------------------------------------------------------
19986 Xxxxx Xxxx Apartments Xxxxxxx $ 11,000,000 Holdback - 1,700,000
22097 Village at Oakhurst Xxxxxxx $ 6,640,000 Holdback - 1,370,000
21443 Everwood Professional Plaza Xxxxxxx $ 3,283,200 Holdback - 286,000
12731 Ramada Inn - Xxxxxxxx Xxxxxxx $ 2,391,216 Holdback - 240,000
