EXHIBIT 4
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XXXX XX XXXXXXX COMMERCIAL MORTGAGE INC.,
Depositor,
BANK OF AMERICA, NATIONAL ASSOCIATION,
Master Servicer,
CENTERLINE SERVICING INC.,
Special Servicer,
XXXXX FARGO BANK, N.A.,
Trustee,
and
LASALLE BANK NATIONAL ASSOCIATION,
Certificate Administrator and REMIC Administrator
_________________________________
POOLING AND SERVICING AGREEMENT
Dated as of December 1, 2007
_________________________________
$1,858,595,583
Commercial Mortgage Pass-Through Certificates
Series 2007-5
==============================================================================
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS; CERTAIN CALCULATIONS IN RESPECT OF THE MORTGAGE POOL AND THE
CERTIFICATES
Section 1.01 Defined Terms................................................
Section 1.02 Rules of Construction; Other Definitional Provisions.........
Section 1.03 Certain Calculations in Respect of the Mortgage Pool.........
Section 1.04 Cross-Collateralized Mortgage Loans..........................
Section 1.05 Incorporation of Preliminary Statement.......................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES; ORIGINAL
ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.................................
Section 2.02 Acceptance of REMIC I by Trustee.............................
Section 2.03 Mortgage Loan Seller's Repurchase or Substitution of
Mortgage Loans for Material Document Defects and
Material Breaches...........................................
Section 2.04 Representations and Warranties of the Depositor..............
Section 2.05 Representations and Warranties of the Master Servicer........
Section 2.06 Representations and Warranties of the Special Servicer.......
Section 2.07 Representations and Warranties of the Trustee................
Section 2.08 Representations and Warranties of the Certificate
Administrator and the REMIC Administrator...................
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........................
Section 2.12 Loss of Value Reserve Fund Provisions........................
Section 2.13 Designation of Grantor Trust.................................
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, Interest Reserve Account and Serviced
Whole Loan Custodial Account................................
Section 3.05 Permitted Withdrawals From the Certificate Account, the
Distribution Account, the Serviced Whole Loan Custodial
Accounts 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 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 Matters Relating to Certain Mortgage Loans...................
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, the Trustee and the Certificate
Administrator 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 AND THE CERTIFICATE ADMINISTRATOR
Section 8.01 Duties of Trustee and the Certificate Administrator..........
Section 8.02 Certain Matters Affecting the Trustee and the Certificate
Administrator...............................................
Section 8.03 Neither Trustee nor Certificate Administrator is Liable
for Validity or Sufficiency of Certificates or Loans........
Section 8.04 Trustee and Certificate Administrator May Own
Certificates................................................
Section 8.05 Fees of and Expenses of Trustee and Certificate
Administrator; Indemnification of Trustee and
Certificate Administrator...................................
Section 8.06 Eligibility Requirements for Trustee and the Certificate
Administrator...............................................
Section 8.07 Resignation and Removal of the Trustee or Certificate
Administrator...............................................
Section 8.08 Successor Trustee or Successor Certificate Administrator.....
Section 8.09 Merger or Consolidation of Trustee or Certificate
Administrator...............................................
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, the Trustee
and the Certificate Administrator to Cooperate with
REMIC Administrator.........................................
Section 10.03 Fees of the REMIC Administrator..............................
Section 10.04 Use of Agents................................................
Section 10.05 Grantor Trust Administration.................................
ARTICLE XI
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 11.01 Intent of the Parties; Reasonableness........................
Section 11.02 Succession; Subcontractors...................................
Section 11.03 Filing Obligations...........................................
Section 11.04 Form 10-D Filings............................................
Section 11.05 Form 10-K Filings............................................
Section 11.06 Xxxxxxxx-Xxxxx Certification.................................
Section 11.07 Form 8-K Filings.............................................
Section 11.08 Form 15 Filing...............................................
Section 11.09 Annual Compliance Statements.................................
Section 11.10 Annual Reports on Assessment of Compliance with Servicing
Criteria....................................................
Section 11.11 Annual Independent Public Accountants' Servicing Report......
Section 11.12 Indemnification..............................................
Section 11.13 Signatures; Article XI Notices...............................
Section 11.14 Amendments...................................................
Section 11.15 Certain Matters Relating to the Securitization of
Companion Loans.............................................
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment....................................................
Section 12.02 Recordation of Agreement; Counterparts.......................
Section 12.03 Limitation on Rights of Certificateholders...................
Section 12.04 Governing Law................................................
Section 12.05 Notices......................................................
Section 12.06 Severability of Provisions...................................
Section 12.07 Successors and Assigns; Beneficiaries........................
Section 12.08 Article and Section Headings.................................
Section 12.09 Notices to and from Rating Agencies..........................
Section 12.10 Requests for Information; Standing Requests..................
Section 12.11 Insolvency...................................................
LIST OF EXHIBITS
EXHIBIT A-1 Form of Class A-1 Certificate
EXHIBIT A-2 Form of Class A-2 Certificate
EXHIBIT A-3 Form of Class A-3 Certificate
EXHIBIT A-4 Form of Class A-SB Certificate
EXHIBIT A-5 Form of Class A-4 Certificate
EXHIBIT A-6 Form of Class A-1A Certificate
EXHIBIT A-7 Form of Class XW Certificate
EXHIBIT A-8 Form of Class A-M Certificate
EXHIBIT A-9 Form of Class A-J Certificate
EXHIBIT A-10 Form of Class B Certificate
EXHIBIT A-11 Form of Class C Certificate
EXHIBIT A-12 Form of Class D Certificate
EXHIBIT A-13 Form of Class E Certificate
EXHIBIT A-14 Form of Class F Certificate
EXHIBIT A-15 Form of Class G Certificate
EXHIBIT A-16 Form of Class H Certificate
EXHIBIT A-17 Form of Class J Certificate
EXHIBIT A-18 Form of Class K Certificate
EXHIBIT A-19 Form of Class L Certificate
EXHIBIT A-20 Form of Class M Certificate
EXHIBIT A-21 Form of Class N Certificate
EXHIBIT A-22 Form of Class O Certificate
EXHIBIT A-23 Form of Class P Certificate
EXHIBIT A-24 Form of Class Q Certificate
EXHIBIT A-25 Form of Class S Certificate
EXHIBIT A-26 Form of Class V Certificate
EXHIBIT A-27 Form of Class R-I Certificate
EXHIBIT A-28 Form of Class R-II Certificate
EXHIBIT B Form of Investment Representation Letter
EXHIBIT C-1 Form of Transfer Affidavit and Agreement Pursuant to Section
5.02(d)(i)(B)
EXHIBIT C-2 Form of Transferor Certificate Pursuant to Section 5.02(d)(i)
(D)
EXHIBIT D Form of Request for Release
EXHIBIT E Form of ERISA Representation Letter
EXHIBIT F Form of Custodial Certification
EXHIBIT G Form of Certificate Administrator Distribution Date Statement
EXHIBIT H Form of Request for Review
EXHIBIT I Form of Notice Regarding Purchase Option Exercise
EXHIBIT J Form of Notice and Certification Regarding Defeasance of
Mortgage Loan
EXHIBIT K Form of Certification to be Provided with Form 10-K
EXHIBIT L Form of Certification to be Provided to Depositor
EXHIBIT M Form of Confidentiality Agreement
EXHIBIT N Form of Regulation S Certificate
EXHIBIT O Form of Transfer Certificate for Exchange or Transfer from
Domestic Global Certificate to Regulation S Global Certificate
During the Restricted Period
EXHIBIT P Form of Transfer Certificate for Exchange or Transfer from
Domestic Global Certificate to Regulation S Global Certificate
After the Restricted Period
EXHIBIT Q Form of Transfer Certificate for Exchange or Transfer from
Regulation S Global Certificate to Domestic Global Certificate
LIST OF SCHEDULES
SCHEDULE I Mortgage Loan Schedule
SCHEDULE II Sub-Servicing Agreements in Effect as of the Closing Date
SCHEDULE III Schedule of Exceptions under Section 2.02(a)
SCHEDULE IV [RESERVED]
SCHEDULE V Mortgage Loans that Initially Pay Interest Only
SCHEDULE VI Mortgage Loans Containing Additional Debt
SCHEDULE VII Schedule of Controlling Holders
SCHEDULE VIII Servicing Criteria to be Addressed in Assessment of Compliance
SCHEDULE IX Additional Form 10-D Disclosure
SCHEDULE X Additional Form 10-K Disclosure
SCHEDULE XI Form 8-K Disclosure Information
SCHEDULE XII Form of Additional Disclosure Notification
This Pooling and Servicing Agreement (this "Agreement"), dated and
effective as of December 1, 2007, is by and among BANC OF AMERICA COMMERCIAL
MORTGAGE INC., as Depositor, BANK OF AMERICA, NATIONAL ASSOCIATION, as Master
Servicer, CENTERLINE SERVICING INC., as Special Servicer, XXXXX FARGO BANK,
N.A., as Trustee, and LASALLE BANK NATIONAL ASSOCIATION, as Certificate
Administrator 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 Certificate Administrator will elect that
two segregated pools of assets within the Trust Fund (exclusive of the Excess
Interest and the Excess Interest Distribution 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 Certificate Administrator 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 Regular Certificates (the "Corresponding
Certificates"):
Corresponding
Corresponding Components of
Corresponding REMIC I Regular REMIC I Class XW
Certificates Interests(1) Principal Balance Certificates(1)
------------ ------------ ----------------- ---------------
Class X-0 XX-0 $ 25,000,000 XA-1
Class X-0 XX-0 $ 77,000,000 XA-2
Class X-0 XX-0 $ 281,000,000 XA-3
Class A-SB LA-SB $ 48,322,000 XA-SB
Class A-4 LA-4 $ 612,000,000 XA-4
Class A-1A LA-1A $ 257,694,000 XA-1A
Class A-M LA-M $ 185,850,000 XA-M
Class A-J LA-J $ 139,405,000 XA-J
Class B LB $ 20,909,000 XB
Class C LC $ 13,939,000 XC
Class D LD $ 20,909,000 XD
Class E LE $ 18,585,000 XE
Class F LF $ 11,616,000 XF
Class G LG $ 18,585,000 XG
Class H LH $ 20,909,000 XH
Class J LJ $ 16,262,000 XJ
Class K LK $ 18,585,000 XK
Class L LL $ 11,616,000 XL
Class M LM $ 6,969,000 XM
Class N LN $ 4,646,000 XN
Class O LO $ 6,969,000 XO
Class P LP $ 2,323,000 XP
Class Q LQ $ 4,646,000 XQ
Class S LS $ 34,856,583 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 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.
REMIC II
As provided herein, the Certificate Administrator 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 X-0, Xxxxx X-0, Class A-SB, 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 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 REMIC II Regular Certificates:
Approximate Initial Initial Class
Designation Pass-Through Rate Principal Balance
--------------------------------------------------------------------------------
REMIC II Regular Certificates:
Class A-1 5.1750% per annum $ 25,000,000
Class A-2 5.4340% per annum $ 77,000,000
Class A-3 5.6200% per annum $ 281,000,000
Class A-SB 5.5870% per annum $ 48,322,000
Class A-4 5.4920% per annum $ 612,000,000
Class A-1A 5.3610% per annum $ 257,694,000
Class A-M 5.7720% per annum(1) $ 185,850,000
Class A-J 6.2029% per annum(2) $ 139,405,000
Class B 6.2029% per annum(2) $ 20,909,000
Class C 6.2029% per annum(2) $ 13,939,000
Class D 6.2029% per annum(2) $ 20,909,000
Class E 6.2029% per annum(2) $ 18,585,000
Class F 6.2029% per annum(2) $ 11,616,000
Class G 6.2029% per annum(2) $ 18,585,000
Class H 6.2029% per annum(2) $ 20,909,000
Class J 6.2029% per annum(2) $ 16,262,000
Class K 6.2029% per annum(2) $ 18,585,000
Class L 4.5510% per annum(1) $ 11,616,000
Class M 4.5510% per annum(1) $ 6,969,000
Class N 4.5510% per annum(1) $ 4,646,000
Class O 4.5510% per annum(1) $ 6,969,000
Class P 4.5510% per annum(1) $ 2,323,000
Class Q 4.5510% per annum(1) $ 4,646,000
Class S 4.5510% per annum(1) $ 34,856,583
Class XW 0.6078% per annum(3) $1,858,595,583(4)
------------
(1) Initial Pass-Through Rate. The Pass-Through Rate for the Class A-M, Class
L, Class M, Class N, Class O, Class P, Class Q and Class S Certificates
for each Distribution Date will equal a per annum rate subject to a cap at
the Weighted Average Adjusted Net Mortgage Rate for such Distribution
Date.
(2) Initial Pass-Through Rate. The Pass-Through Rate for the Class A-J, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class J and Class
K Certificates for each Distribution Date will equal the Weighted Average
Adjusted Net Mortgage Rate for such Distribution Date.
(3) The Pass-Through Rate for the Class XW Certificates will be calculated in
accordance with the definition of "Class XW Pass-Through Rate".
(4) The Class XW Certificates will not have Class Principal Balances, rather,
such Class of Certificates will accrue interest as provided herein on the
Class XW Notional Amount.
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 REMIC II 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.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Certificate Administrator and the REMIC Administrator agree as follows:
ARTICLE I
DEFINITIONS; CERTAIN CALCULATIONS IN RESPECT OF THE MORTGAGE
POOL AND THE CERTIFICATES
Section 1.01 Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, the following words and phrases, unless the context otherwise
requires, shall have the meanings specified in this Article.
"10-K Filing Deadline": As defined in Section 11.05(a).
"30/360 Basis": The accrual of interest calculated on the basis of a
360-day year consisting of twelve 30-day months.
"A/B Whole Loan": Any of the Xxxxx Xxxxxx Building A/B Whole Loan,
the Green Oak Village Place A/B Whole Loan or the West Hartford Portfolio A/B
Whole Loan, as applicable.
"A/B Whole Loan Purchase Option": Any of the Sawgrass Xxxxx Whole
Loan Purchase Option, the Xxxxx Xxxxxx Building A/B Whole Loan Purchase Option,
the Green Oak Village Place A/B Whole Loan Purchase Option or the West Hartford
Portfolio Whole Loan Purchase Option, as applicable.
"A/B Whole Loan Purchase Option Holder": Any of the Sawgrass Xxxxx
Whole Loan Purchase Option Holder, the Xxxxx Xxxxxx Building A/B Whole Loan
Purchase Option Holder, the Green Oak Village Place A/B Whole Loan Purchase
Option Holder or the West Hartford Portfolio Whole Loan Purchase Option Holder,
as applicable.
"A/B Whole Loan Remittance Amount": With respect to any Master
Servicer Remittance Date and any A/B Whole Loan, an amount equal to (a) all
amounts on deposit in the related Serviced Whole Loan Custodial Account as of
the commencement of business on such Master Servicer Remittance Date, net of (b)
any portion of the amounts described in clause (a) of this definition that
represents one or more of the following: (i) collected Monthly Payments that are
due on a Due Date following the end of the related Collection Period, (ii) any
unscheduled payments of principal (including, without limitation, Principal
Prepayments, and interest, Liquidation Proceeds and Insurance Proceeds received
after the end of the related Collection Period), (iii) any Prepayment Premiums
received after the end of the related Collection Period, (iv) any amounts
payable or reimbursable to any Person from the related Serviced Whole Loan
Custodial Account pursuant to any of clauses (ii) through (xvii) of Section
3.05(f), (v) any Excess Liquidation Proceeds that are unrelated to such A/B
Whole Loan, and (vi) any amounts deposited into the related Serviced Whole Loan
Custodial Account in error, provided that, with respect to the Master Servicer
Remittance Date that occurs in the same calendar month as the Final Distribution
Date, the A/B Whole Loan Remittance Amount will be calculated without regard to
clauses (b)(i), (b)(ii) and (b)(iii) of this definition.
"A/B Whole Loan REO Account": As defined in Section 3.16(b).
"Accrued Certificate Interest": With respect to any Class of REMIC
II Regular Certificates, for any Distribution Date, one month's interest at the
Pass-Through Rate applicable to such Class of Certificates for such Distribution
Date, accrued on the related Class Principal Balance of such Class of
Certificates 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 for any Distribution Date shall be deemed to have accrued
during the applicable Interest Accrual Period. Accrued Certificate Interest
shall be calculated on the basis of a 360-day year consisting of twelve 30-day
months.
"Accrued Component Interest": With respect to each Component of the
Class XW Certificates for any Distribution Date, one month's interest at the
Class XW Strip Rate applicable to such Component for such Distribution Date,
accrued on the Component Notional Amount of such Component outstanding
immediately prior to such Distribution Date. Accrued Component Interest shall be
calculated as described in the definitions of Class XW Strip Rate with respect
to any applicable Component and any Distribution Date, and shall be deemed to
accrue during the calendar month preceding the month in which such Distribution
Date occurs.
"Actual/360 Basis": The accrual of interest calculated on the basis
of the actual number of days elapsed during any calendar month (or other
applicable recurring accrual period) in a year assumed to consist of 360 days.
"Additional Collateral": Any non-real property collateral pledged
and/or delivered by or on behalf of the related Mortgagor and held by the
related Mortgagee to secure payment on any Loan.
"Additional Disclosure Notification": The form of notification to be
included with any Additional Form 10-D Disclosure, Additional Form 10-K
Disclosure or Additional Form 8-K Disclosure, which is attached hereto as
Schedule XII.
"Additional Exclusions": Exclusions relating to terrorist or similar
acts in addition to those customarily found in insurance policies for Mortgaged
Properties prior to September 11, 2001.
"Additional Form 8-K Disclosure": As defined in Section 11.07.
"Additional Form 10-D Disclosure": As defined in Section 11.04.
"Additional Form 10-K Disclosure": As defined in Section 11.05.
"Additional Master Servicing Compensation": As defined in Section
3.11(b).
"Additional Servicer": Each Affiliate of the Master Servicer that
services any of the Mortgage Loans and each Person who is not an Affiliate of
the Master Servicer, other than the Special Servicer and the Trustee, who
Services 10% or more of the Mortgage Loans.
"Additional Special Servicing Compensation": As defined in Section
3.11(d).
"Additional Trust Fund Expense": Any expense incurred or shortfall
experienced with respect to the Trust Fund and not otherwise included in the
calculation of a Realized Loss, that would result in the Holders of the REMIC II
Regular Certificates receiving less than the full amount of principal and/or
interest to which they are entitled on any Distribution Date.
"Adjusted Net Mortgage Rate": With respect to any Loan or REO Loan,
for any Distribution Date, the annualized rate at which interest would have to
accrue thereon on a 30/360 Basis during the most recently ended calendar month
to produce the actual amount of interest accrued (or, if such Loan or REO Loan,
as the case may be, is prepaid, in whole or in part, or otherwise liquidated
during such calendar month, that otherwise would have accrued) in respect of
such Loan or REO Loan, as the case may be, at the related Net Mortgage Rate in
effect for such Loan or REO Loan during such calendar month. Such rate shall be
calculated by multiplying (i) the Net Mortgage Rate (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 (which includes the Certificate Administrator Fees).
"Administrator": As defined in Section 2.08(a).
"Advance": Any P&I Advance or Servicing Advance.
"Advance Interest": Interest accrued on any Advance at the
Reimbursement Rate and payable to the Master Servicer (or any Sub-Servicer), the
Special Servicer or the Trustee, as the case may be, all in accordance with
Section 3.11(g) or Section 4.03(d), as applicable.
"Adverse Grantor Trust Event": Either: (i) any impairment of the
status of any Grantor Trust as a "grantor trust" under subpart E, Part I of
subchapter J of the Code; or (ii) the imposition of a tax upon any Grantor Trust
or any of its assets or transactions.
"Adverse Rating Event": With respect to any Class of Rated
Certificates or Companion Loan Securities and each Rating Agency that has
assigned a rating thereto, as of any date of determination, the qualification,
downgrade or withdrawal of the rating then assigned to such Class of Rated
Certificates or Companion Loan Securities by such Rating Agency (or the placing
of such Class of Rated Certificates or Companion Loan Securities on "negative
credit watch" status in contemplation of any such action with respect thereto).
"Adverse REMIC Event": With respect to each of REMIC I and REMIC II,
either (i) the endangerment of the status of such REMIC as a REMIC or (ii),
except as permitted by Section 3.16(a), the imposition of a tax upon such REMIC
or any of its assets or transactions (including, without limitation, the tax on
prohibited transactions as defined in Section 860F(a)(2) of the Code and the tax
on certain contributions set forth in Section 860G(d) of the Code).
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have the meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement, together with all
amendments hereof and supplements hereto.
"Anticipated Repayment Date": With respect to any ARD Loan, the date
specified on the related Mortgage Note, as of which Excess Interest shall begin
to accrue on such Loan, which date is prior to the Stated Maturity Date for such
Loan.
"Applicable State Law": For purposes of Article X, the Applicable
State Law shall be (a) the laws of any state in which the Corporate Trust Office
of the Certificate Administrator is located, (b) the laws of the states in which
any loan documents are held and/or any REO Properties are located, (c) such
other state and local law whose applicability shall have been brought to the
attention of the REMIC Administrator by either (i) an Opinion of Counsel
delivered to it or (ii) written notice from the appropriate taxing authority as
to the applicability of such state law, and (d) such other state or local law as
to which the REMIC Administrator has actual knowledge of applicability.
"Appraisal": With respect to any Mortgaged Property or REO Property
as to which an appraisal is required to be performed pursuant to the terms of
this Agreement, a narrative appraisal complying with Title XI of FIRREA (or, in
the case of a Loan or REO Loan with a Stated Principal Balance as of the date of
such appraisal of $2,000,000 or less, at the Special Servicer's option, either a
limited appraisal and a summary report or an internal valuation prepared by the
Special Servicer) that indicates the "market value" of the subject property, as
defined in 12 C.F.R. ss.225.62(g), and is conducted by a Qualified Appraiser (or
by the Special Servicer in the case of a limited appraisal and summary report or
internal valuation with respect to a Loan or a REO Loan with a Stated Principal
Balance as of the date of such appraisal or valuation of $2,000,000 or less).
"Appraisal Reduction Amount": With respect to any Required Appraisal
Serviced Loan, an amount (calculated as of the Determination Date by the Special
Servicer immediately following the later of the date on which the most recent
relevant Appraisal acceptable for purposes of Section 3.19(b) was obtained by
the Special Servicer pursuant to this Agreement and the date of the most recent
Appraisal Trigger Event with respect to such Required Appraisal Serviced Loan)
equal to the excess, if any, of:
(1) the sum of (a) the Stated Principal Balance of such Required
Appraisal Serviced Loan as of such Determination Date, (b) to the extent not
previously advanced by or on behalf of the Master Servicer, or the Trustee, all
unpaid interest (net of Default Interest) accrued on such Required Appraisal
Serviced Loan through the most recent Due Date prior to such Determination Date,
(c) all unpaid Master Servicing Fees, Special Servicing Fees, Trustee Fees
(which includes the Certificate Administrator 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 above, for purposes of this definition, the
Stated Principal Balance of a Required Appraisal Loan shall not include any
portion thereof which has been defeased and is secured by defeasance collateral.
Notwithstanding the foregoing, if (i) an Appraisal Trigger Event
occurs with respect to any Serviced Loan, (ii) either (A) no Appraisal has been
obtained or conducted, as applicable in accordance with Section 3.19(b), with
respect to the related Mortgaged Property during the 12 month period prior to
the date of such Appraisal Trigger Event or (B) there shall have occurred since
the date of the most recent Appraisal a material change in the circumstances
surrounding the related Mortgaged Property that would, in the Special Servicer's
judgment, materially affect the value of the property, and (iii) no new
Appraisal is obtained or conducted, as applicable in accordance with Section
3.19(b), within 60 days after such Appraisal Trigger Event, then (x) until such
new Appraisal is obtained or conducted, as applicable in accordance with Section
3.19(b), the Appraisal Reduction Amount shall equal 25% of the Stated Principal
Balance of such Required Appraisal Serviced Loan, and (y) upon receipt or
performance, as applicable in accordance with Section 3.19(b), of such new
Appraisal by the Special Servicer, the Appraisal Reduction Amount for such
Required Appraisal Serviced Loan will be recalculated in accordance with the
preceding sentence of this definition.
Also notwithstanding the foregoing, if and when any
Cross-Collateralized Mortgage Loan becomes a Required Appraisal Serviced Loan,
an Appraisal Reduction Amount shall be calculated for the entire
Cross-Collateralized Set to which that particular Cross-Collateralized Mortgage
Loan belongs as if such Cross-Collateralized Set was a single mortgage loan
secured by multiple properties, and any resulting Appraisal Reduction Amount for
such Cross-Collateralized Set shall be allocated among the respective
Cross-Collateralized Mortgage Loans forming that set on a pro rata basis in
accordance with the respective Stated Principal Balances of those Serviced
Loans.
In addition, notwithstanding the foregoing and for the avoidance of
doubt, for purposes of calculating Appraisal Reduction Amounts for determining
change of control with respect to any Whole Loan, references to the Stated
Principal Balance will be to the entire Stated Principal Balance thereof (i.e.,
the aggregate Stated Principal Balances of the related Mortgage Loan and, in the
case of a Serviced Whole Loan, the related Companion Loan).
Each Serviced Whole Loan will be treated as a single Mortgage Loan
for purposes of calculating an Appraisal Reduction Amount with respect to the
Mortgage Loans that comprise that Serviced Whole Loan. For the avoidance of
doubt, any Appraisal Reduction Amount with respect to (i) any Pari Passu Whole
Loan shall be allocated pro rata between the Mortgage Loan and the related
Companion Loan and (ii) any A/B Whole Loan shall be calculated based upon the
aggregate stated principal balances of the related Mortgage Loan and the related
Companion Loan and shall be deemed allocated first, to the related Companion
Loan to the extent of its outstanding principal balance and then to the related
Mortgage Loan.
For the avoidance of doubt and for purposes of calculating Appraisal
Reduction Amounts in connection with any P&I Advance required to be made under
this Agreement for a Mortgage Loan constituting a part of an A/B Whole Loan,
such calculation shall be made based upon and allocated solely to the Stated
Principal Balance of the Mortgage Loan contained in such A/B Whole Loan and
shall exclude the Stated Principal Balance of the related Note B.
The Appraisal Reduction Amount applicable to the Sawgrass Xxxxx
Split Mortgage Loan (which is governed by the Sawgrass Xxxxx Servicing
Agreement), the Arundel Xxxxx Xxxx Passu Mortgage Loan (which is governed by the
Arundel Xxxxx Servicing Agreement), the CVS Portfolio Louisiana Pari Passu
Mortgage Loan (which is governed by the CVS Portfolio Louisiana Servicing
Agreement), the CVS Portfolio Texas Pari Passu Mortgage Loan (which is governed
by the CVS Portfolio Texas Servicing Agreement) or the CVS - Gulfport Pari Passu
Mortgage Loan (which is governed by the CVS - Gulfport Servicing Agreement)
shall be calculated by the applicable Non-Serviced Loan Master Servicer or
Non-Serviced Loan Special Servicer under the related Non-Serviced Loan 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 Monthly Payment with respect to such Loan remains
unpaid for 60 days past the Due Date for such payment (or for such
shorter period at the end of which such delinquency will become a
Servicing Transfer Event); provided, however, solely in the case of
a delinquent Balloon Payment and if (x) the related Borrower is
actively seeking a refinancing commitment, (y) the related Borrower
continues to make payments in the amount of its Monthly Payment, and
(z) subject to Section 3.21(f), the Directing Certificateholder
consents, failure to pay such Balloon Payment during such 60-day
period shall not constitute an Appraisal Trigger Event if the
related Mortgagor has delivered to the Master Servicer, on or before
the 60th day after the Due Date of such Balloon Payment, a
refinancing commitment reasonably acceptable to the Master Servicer,
for such longer period, not to exceed 120 days beyond such Due Date,
during which the refinancing would occur;
(iii) the passage of 60 days after the Special Servicer
receives notice that the Mortgagor under such Serviced Loan becomes
the subject of bankruptcy, insolvency or similar proceedings that
remain undischarged and undismissed;
(iv) the passage of 60 days after the Special Servicer
receives notice that a receiver or similar official is appointed
with respect to the related Mortgaged Property;
(v) the related Mortgaged Property becomes a REO Property; or
(vi) if a Serviced Loan has been extended three times, upon
the sixtieth day after the third extension.
"Appraised Value": With respect to any Mortgaged Property (other
than any Mortgaged Property related to a Non-Serviced Loan) and as of any date
of determination, the appraised value of a Mortgaged Property or REO Property
based upon the most recent Appraisal obtained or conducted, as appropriate,
pursuant to this Agreement. With respect to any Mortgaged Property related to a
Non-Serviced Loan, the appraised value shall be determined pursuant to the
related Non-Serviced Loan 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
A/B Whole Loan that is a Performing Serviced Loan that involves an
extension of the maturity date of such Loan or (B) in connection
with a Special Action for any Non-Partitioned Loan or Post CAP A/B
Whole Loan that is a Performing Serviced Loan, the Master Servicer
shall obtain the approval and consent of the Special Servicer and
the Special Servicer shall obtain the approval and consent of the
Directing Certificateholder;
(iii) with respect to any Non-Partitioned Loan or Post CAP A/B
Whole Loan that is a Specially Serviced Loan, the Special Servicer
shall obtain the approval and consent of the Directing
Certificateholder in connection with a Special Action;
(iv) with respect to any A/B Whole Loan, during any time
period that a related Control Appraisal Period does not exist, the
Master Servicer, if such A/B Whole Loan is a then Performing
Serviced Loan, shall seek the approval and consent of the Special
Servicer, and the Special Servicer shall then obtain the approval
and consent of the related Controlling Holder in connection with a
Special Action; and
(v) with respect to any A/B Whole Loan, during any time period
that a related Control Appraisal Period does not exist, the Special
Servicer, if such A/B Whole Loan is a then Specially Serviced Loan,
shall obtain the approval and consent of the related Controlling
Holder in connection with a Special Action.
With respect to any extension or Special Action set forth in clauses
(i), (ii) and (iv) of this definition, the Special Servicer shall respond to the
Master Servicer in writing (which may be via e-mail or facsimile) of its
decision to grant or deny the Master Servicer's request for approval and consent
within ten Business Days of its receipt of such request (except as provided in
Section 3.08) and all information reasonably requested by the Special Servicer,
as such time frame may be extended if the Special Servicer is required to seek
the consent of the Directing Certificateholder, any Controlling Holder or any
Rating Agency. If the Special Servicer so fails to respond to the Master
Servicer within the time period referenced in the immediately preceding
sentence, such approval and consent shall be deemed granted. With respect to any
Special Action described in clauses (ii) and (iii) of this definition, the
Directing Certificateholder shall respond to the Special Servicer within ten
Business Days of its receipt of such request in writing (which may be via e-mail
or facsimile) and such request will be deemed granted if the Directing
Certificateholder does not respond in such time frame. With respect to any
Special Action described in clauses (iv) and (v) of this definition, the related
Controlling Holder shall respond in writing (which may be via e-mail or
facsimile) to the Special Servicer within ten Business Days of its receipt of a
request for its approval and consent, and such request will be deemed granted if
the required party does not respond in such time frame.
"ARD Loan": Any Mortgage Loan that provides for changes in payments
and accrual of interest, including the capture of Excess Interest from the
related mortgaged property and an increase in the applicable Mortgage Rate, if
it is not paid in full by the Anticipated Repayment Date. Each Mortgage Loan
that is an ARD Loan is identified on the Mortgage Schedule as such pursuant to
clause (xv) under the definition of Mortgage Loan Schedule.
"Arundel Xxxxx Indemnified Parties": As defined in Section 6.03(c).
"Arundel Xxxxx Intercreditor Agreement": The Agreement Among Note
Holders dated as of November 1, 2007 by and among the Arundel Xxxxx Note A-1
Holder, the Arundel Xxxxx Note A-2 Holder and the Arundel Xxxxx Note A-3 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.
"Arundel Xxxxx Master Servicer": The master servicer under the
Arundel Xxxxx Servicing Agreement, which as of the Closing Date is Bank of
America, National Association.
"Arundel Xxxxx Nonrecoverable Servicing Advance": With respect to
the Arundel Xxxxx Xxxx Passu Mortgage Loan, a "Nonrecoverable Servicing Advance"
as defined in the Arundel Xxxxx Servicing Agreement.
"Arundel Xxxxx Note A-1": One of the Mortgage Notes related to
Arundel Xxxxx Xxxx Passu Whole Loan that is not included in the Trust Fund,
which such note is pari passu in right of payment to the Arundel Xxxxx Note A-2
and the Arundel Xxxxx Note A-3 as set forth in the Arundel Xxxxx Intercreditor
Agreement.
"Arundel Xxxxx Note A-1 Holder": The holder of the Arundel Xxxxx
Note A-1, as of the Closing Date, the trust established in connection with the
issuance of the Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-4.
"Arundel Xxxxx Note A-2": With respect to the Arundel Xxxxx Xxxx
Passu Mortgage Loan, the related Mortgage Note that is included in the Trust
Fund, which is pari passu in right of payment to the Arundel Xxxxx Note A-1 and
the Arundel Xxxxx Note A-3 as set forth in the Arundel Xxxxx Intercreditor
Agreement.
"Arundel Xxxxx Note A-2 Holder": The holder of the Arundel Xxxxx
Note A-2, initially Bank of America, N.A.
"Arundel Xxxxx Note A-3": One of the Mortgage Notes related to
Arundel Xxxxx Xxxx Passu Whole Loan that is not included in the Trust Fund,
which such note is pari passu in right of payment to the Arundel Xxxxx Note A-1
and the Arundel Xxxxx Note A-2 as set forth in the Arundel Xxxxx Intercreditor
Agreement.
"Arundel Xxxxx Note A-3 Holder": The holder of the Arundel Xxxxx
Note A-3, initially Bank of America, N.A.
"Arundel Xxxxx Noteholders": The Arundel Xxxxx Note A-1 Holder, the
Arundel Xxxxx Note A-2 Holder and the Arundel Xxxxx Note A-3 Holder.
"Arundel Xxxxx Xxxx Passu Companion Loan": Each or both of the loans
evidenced by the Arundel Xxxxx Note A-1 or the Arundel Xxxxx Note A-3, as the
context requires.
"Arundel Xxxxx Xxxx Passu Companion Loan Holder": Each holder of the
Arundel Xxxxx Xxxx Passu Companion Loan.
"Arundel Xxxxx Xxxx Passu Mortgage Loan": The Mortgage Loan
identified as Loan No. 3407568 in the Mortgage Loan Schedule, which, together
with the Arundel Xxxxx Note A-1 and the Arundel Xxxxx Note A-3, is secured by a
Mortgage on the related Mortgaged Property.
"Arundel Xxxxx Xxxx Passu Whole Loan": Collectively, the Arundel
Xxxxx Xxxx Passu Mortgage Loan and each of the Arundel Xxxxx Xxxx Passu
Companion Loans. References herein to Arundel Xxxxx Xxxx Passu Whole Loan shall
be construed to refer to the aggregate indebtedness under the Arundel Xxxxx Note
A-1, the Arundel Xxxxx Note A-2 and the Arundel Xxxxx Note A-3.
"Arundel Xxxxx Servicing Agreement": That certain pooling and
servicing agreement dated as of November 1, 2007 among Banc of America
Commercial Mortgage Inc., as depositor, the Arundel Xxxxx Master Servicer, as
master servicer, the Arundel Xxxxx Special Servicer, as special servicer, and
the Arundel Xxxxx Trustee, as trustee and REMIC administrator, which agreement
relates to the Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-4.
"Arundel Xxxxx Special Servicer": The special servicer under the
Arundel Xxxxx Servicing Agreement, which as of the Closing Date is Midland Loan
Services, Inc.
"Arundel Xxxxx Trustee": The trustee under the Arundel Xxxxx
Servicing Agreement, which as of the Closing Date is Xxxxx Fargo Bank, N.A.
"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 a REO Loan.
"Available Distribution Amount": With respect to any Distribution
Date and each Mortgage Loan and, in the case of a Non-Serviced Whole Loan (other
than with respect to a P&I Advance required to be made by the Trustee) only to
the extent received by the Certificate Administrator 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 (i) the Sawgrass Xxxxx Master Servicer in respect of the
Sawgrass Xxxxx Split Mortgage Loan pursuant to the Sawgrass Xxxxx Servicing
Agreement and/or the Sawgrass Xxxxx Intercreditor Agreement, (ii) the Arundel
Xxxxx Master Servicer in respect of the Arundel Xxxxx Xxxx Passu Mortgage Loan
pursuant to the Arundel Xxxxx Servicing Agreement and/or the Arundel Xxxxx
Intercreditor Agreement, (iii) the CVS Portfolio Louisiana Master Servicer in
respect of the CVS Portfolio Louisiana Pari Passu Mortgage Loan pursuant to the
CVS Portfolio Louisiana Servicing Agreement and/or the CVS Portfolio Louisiana
Intercreditor Agreement, (iv) the CVS Portfolio Texas Master Servicer in respect
of the CVS Portfolio Texas Pari Passu Mortgage Loan pursuant to the CVS
Portfolio Texas Servicing Agreement and/or the CVS Portfolio Texas Intercreditor
Agreement or (v) the CVS - Gulfport Master Servicer in respect of the CVS -
Gulfport Pari Passu Mortgage Loan pursuant to the CVS - Gulfport Servicing
Agreement and/or the CVS - Gulfport 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
(provided, however, any such payments of principal or interest received after
the end of the related Collection Period but prior to the related Master
Servicer Remittance Date shall be included in this definition of Available
Distribution Amount to the extent that the failure to include such payments
would result in a Prepayment Interest Shortfall), (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) (A) 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 and (B)
with respect to the first Distribution Date, the Interest Deposit Amount;
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, is a fraction: (a) whose numerator is the amount, if any, by which
(i) the Pass-Through Rate on such Class of Certificates 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 December 20, 2007,
relating to trust funds established by the Depositor and publicly offered
mortgage pass-through certificates evidencing interests therein.
"Book-Entry Certificate": Any Certificate registered in the name of
the Depository or its nominee.
"Borrower": Individually and collectively, as the context may
require, the obligor or obligors under a Loan, including any Person that has not
signed the related Mortgage Note but owns an interest in the related Mortgaged
Property, which interest has been encumbered to secure such Loan.
"Breach": With respect to any Mortgage Loan, any breach of
representation or warranty made by the Mortgage Loan Seller pursuant to Section
4(b) of the Mortgage Loan Purchase and Sale Agreement.
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in Minnesota, Pennsylvania, New York, any city in
which the office of the Certificate Registrar is located or any city in which
the Corporate Trust Office of the Trustee or the Certificate Administrator or
principal place of business of the Master Servicer or Special Servicer is
located are authorized or obligated by law or executive order to remain closed.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Certificate": Any one of the Depositor's Commercial Mortgage
Pass-Through Certificates, Series 2007-5 as executed by the Certificate
Administrator 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 2007-5, Certificate Account".
"Certificate Administrator": LaSalle Bank National Association, and
its successor in interest.
"Certificate Administrator Fee": The portion of the Trustee Fees
payable to the Certificate Administrator.
"Certificate Administrator Reports": Each of the CMSA Bond Level
File and the CMSA Collateral Summary File.
"Certificate Administrator's Website": The website maintained by the
Certificate Administrator and initially located at "xxx.xxxxxxxx.xxx", or at
such other address as the Certificate Administrator may designate from time to
time.
"Certificate Factor": With respect to any Class of REMIC II 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 XW Notional Amount, as the case may be,
and the denominator of which is the related Initial Class Principal Balance or
Initial Class XW 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 XW 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, 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, the Mortgage
Loan Seller, the Master Servicer, the Special Servicer, the REMIC Administrator,
the Trustee or the Certificate Administrator 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, the Certificate Administrator 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, the Certificate Administrator 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 and Class A-J
Certificates.
"Class A Senior Certificate": Any one of the Class A-1, Class X-0,
Xxxxx X-0, Class A-SB, 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
5.1750%.
"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-6
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-1A Pass-Through Rate": A fixed per annum rate equal to
5.3610%.
"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 fixed per annum rate equal to
5.4340%.
"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-3
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-3 Pass-Through Rate": A fixed per annum rate equal to
5.6200%.
"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-5
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-4 Pass-Through Rate": A fixed per annum rate equal to
5.4920%.
"Class A-J Certificate": Any one of the Certificates with a "Class
A-J" designation on the face thereof, substantially in the form of Exhibit A-9
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-J Pass-Through Rate": A per annum rate equal to the
Weighted Average Adjusted Net Mortgage Rate for the related Distribution Date.
"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-8
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 5.7720%;
provided, however, the Class A-M Pass-Through Rate shall not exceed the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class A-SB Certificate": Any one of the Certificates with a "Class
A-SB" 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-SB Pass-Through Rate": A per annum rate equal to 5.5870%.
"Class B Certificate": Any one of the Certificates with a "Class B"
designation on the face thereof, substantially in the form of Exhibit A-10
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-11
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-12
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-13
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-14
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-15
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-16
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-17
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-18
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-19
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 4.5510%;
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-20
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 4.5510%;
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-21
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 4.5510%;
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-22
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 4.5510%;
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-23
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 4.5510%;
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 outstanding as of any date of
determination. As of the Closing Date, the Class Principal Balance of each such
Class of Sequential Pay Certificates shall equal the Initial Class Principal
Balance thereof. On each Distribution Date, the Class Principal Balance of each
Class of Sequential Pay Certificates 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.
"Class Q Certificate": Any one of the Certificates with a "Class Q"
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 Q Pass-Through Rate": A per annum rate equal to 4.5510%;
provided, however, the Class Q Pass-Through Rate shall not exceed the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class R-I Certificate": Any one of the Certificates with a "Class
R-I" designation on the face thereof, substantially in the form of Exhibit A-27
attached hereto, and evidencing the REMIC I Residual Interest for purposes of
the REMIC Provisions.
"Class R-II Certificate": Any one of the Certificates with a "Class
R-II" designation on the face thereof, substantially in the form of Exhibit A-28
attached hereto, and evidencing the sole Class of "residual interest" in REMIC
II for purposes of the REMIC Provisions.
"Class S Certificate": Any one of the Certificates with a "Class S"
designation on the face thereof, substantially in the form of Exhibit A-25
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 4.5510%;
provided, however, the Class S Pass-Through Rate shall not exceed the Weighted
Average Adjusted Net Mortgage Rate for the related Distribution Date.
"Class V Certificate": Any one of the Certificates with a "Class V"
designation on the face thereof, substantially in the form of Exhibit A-26
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-7
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, 0.6078% 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": December 28, 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 Certificate Administrator, 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 Certificate Administrator.
"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 Certificate Administrator.
"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 Certificate Administrator.
"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, the Special Servicer, the Certificate Administrator
and/or the 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, the
Certificate Administrator 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, the Certificate Administrator 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 Certificate Administrator.
"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: (i) the Sawgrass Xxxxx Companion Loans,
(ii) the Arundel Xxxxx Xxxx Passu Companion Loans, (iii) the Xxxxx Xxxxxx
Building A/B Companion Loan, (iv) the Green Oak Village Place A/B Companion
Loan, (v) West Hartford Portfolio A/B Companion Loan, (vi) CVS Portfolio
Louisiana Pari Passu Companion Loan, (vii) CVS Portfolio Texas Pari Passu
Companion Loan and (viii) CVS - Gulfport Pari Passu Companion Loan, as
applicable.
"Companion Loan Holder": With respect to: (i) the Sawgrass Xxxxx
Companion Loans, the Sawgrass Xxxxx Companion Loan Holders; (ii) the Arundel
Xxxxx Xxxx Passu Companion Loans, the Arundel Xxxxx Xxxx Passu Companion Loan
Holders; (iii) the Xxxxx Xxxxxx Building A/B Companion Loan, the Xxxxx Xxxxxx
Building A/B Companion Loan Holder; (iv) the Green Oak Village Place A/B
Companion Loan, the Green Oak Village Place A/B Companion Loan Holder; (v) the
West Hartford Portfolio A/B Companion Loan, the West Hartford Portfolio A/B
Companion Loan Holder; (vi) the CVS Portfolio Louisiana Pari Passu Companion
Loan, the CVS Portfolio Louisiana Pari Passu Companion Loan Holder; (vii) the
CVS Portfolio Texas Pari Passu Companion Loan, the CVS Portfolio Texas Pari
Passu Companion Loan Holder; and (viii) the CVS - Gulfport Pari Passu Companion
Loan, the CVS - Gulfport Pari Passu Companion Loan Holder, as applicable.
"Companion Loan Securities": Any class of securities backed, wholly
or partially, by any of the Sawgrass Xxxxx Xxxx Passu Companion Loans, the
Arundel Xxxxx Xxxx Passu Companion Loans, the CVS Portfolio Louisiana Pari Passu
Companion Loan, the CVS Portfolio Texas Pari Passu Companion Loan or the CVS -
Gulfport Pari Passu Companion Loan, as applicable.
"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, Xxxxxxxxx XX-0,
Component XA-SB, Component XX-0, Xxxxxxxxx XX-0X, Component XA-M, Component
XA-J, Component XB, Component XC, Component XD, Component XE, Component XF,
Component XG, Component XH, Component XJ, Component XK, Component XL, Component
XM, Component XN, Component XO, Component XP, Component XQ and Component XS.
"Component Notional Amount": With respect to each Component and any
date of determination, an amount equal to the then REMIC I Principal Balance of
its Corresponding REMIC I Regular Interest.
"Component XA-1": One of the 24 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 24 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 24 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-3": One of the 24 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-3 as of any date of
determination.
"Component XA-4": One of the 24 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 24 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-J as of any date of
determination.
"Component XA-M": One of the 24 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-M as of any date of
determination.
"Component XA-SB": One of the 24 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-SB as of any date of
determination.
"Component XB": One of the 24 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 24 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 24 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 24 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 24 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 24 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 24 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 24 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 24 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 24 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 24 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 24 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 24 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 24 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 24 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 24 components of the Class XW
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LS as of any date of
determination.
"Condemnation Proceeds": All cash amounts received by the Master
Servicer or the Special Servicer in connection with the taking of all or a part
of a Mortgaged Property by exercise of the power of eminent domain or
condemnation (in the case of a Non-Serviced Mortgage Loan, to the extent of any
portion of such amounts received by the Master Servicer pursuant to the related
Intercreditor Agreement), exclusive of any portion thereof required to be
released to the related Mortgagor or any other third-party in accordance with
applicable law and/or the terms and conditions of the related loan documents or
any other applicable document.
"Confidential Information": As defined in Section 3.24.
"Control Appraisal Period": With respect to: (i) the Xxxxx Xxxxxx
Building A/B Companion Loan, a Xxxxx Xxxxxx Building Control Appraisal Period;
(ii) the Green Oak Village Place A/B Companion Loan, a Green Oak Village Place
Control Appraisal Period; and (iii) the West Hartford Portfolio A/B Companion
Loan, a West Hartford Portfolio Control Appraisal Period.
"Controlling Class": As of any date of determination, the
outstanding Class of Sequential Pay Certificates with the lowest payment
priority (the Class A Senior Certificates being treated as a single Class for
this purpose) that has a then outstanding Class Principal Balance at least equal
to 25% of its Initial Class Principal Balance (or, if no Class (or Classes being
treated as a single Class) of Sequential Pay Certificates has a Class Principal
Balance at least equal to 25% of its Initial Class Principal Balance, then the
Controlling Class will be the outstanding Class of Sequential Pay Certificates
with the then largest outstanding Certificate 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 Certificate Registrar 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 Xxxxx Xxxxxx Building
A/B Companion Loan, the Xxxxx Xxxxxx Building Controlling Holder; (ii) the Green
Oak Village Place A/B Companion Loan, the Green Oak Village Place Controlling
Holder; and (iii) the West Hartford Portfolio A/B Companion Loan, the West
Hartford Portfolio Controlling Holder. Each such initial Controlling Holder
shall be set forth on Schedule VII hereto.
"Corporate Trust Office": The principal corporate trust office of
(i) the Trustee is located at 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 2007-5, and
with respect to any successor Trustee, the principal office thereof as
designated in writing to the Depositor and (ii) the Certificate Administrator is
located at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000,
Attention: Global Securities and Trust Services, BACM 2007-5 and, with respect
to any successor Certificate Administrator, the principal office thereof as
designated in writing to the Depositor.
"Corrected Serviced Loan": Any Serviced Loan that had been a
Specially Serviced Loan but as to which all Servicing Transfer Events have
ceased to exist other than in connection with a sale pursuant to Section 3.18.
"Corresponding Certificate": As defined in the Preliminary Statement
with respect to any Corresponding Component or any Corresponding REMIC I Regular
Interest.
"Corresponding Component": As defined in the Preliminary Statement
with respect to any Corresponding Certificate or any Corresponding REMIC I
Regular Interest.
"Corresponding REMIC I Regular Interest": As defined in the
Preliminary Statement with respect to any Corresponding Certificate or any
Corresponding Component.
"Covered Risks": As defined in Section 3.07(a).
"CPR": As defined in the Base Prospectus.
"Cross-Collateralized Mortgage Loan": Any Loan that is, by its
terms, cross-collateralized and cross-defaulted with any other Loan.
"Cross-Collateralized Set": Any set of Loans that is
cross-collateralized and cross-defaulted with each other.
"Current Principal Distribution Amount": With respect to any
Distribution Date, an amount (calculated in accordance with Section 1.03) equal
to the aggregate of, without duplication:
(a) the principal portions of all Monthly Payments (other than
Balloon Payments) and any Assumed Monthly Payments due or deemed due, as
the case may be, made by or on behalf of the related borrower or advanced
in respect of the Mortgage Loans in the Mortgage Pool or in such Loan
Group, as applicable, and any REO Loans for their respective Due Dates
occurring during the related Collection Period or any prior Collection
Period (if not previously distributed);
(b) all Principal Prepayments received on the Mortgage Loans in the
Mortgage Pool or in such Loan Group, as applicable, during the related
Collection Period;
(c) with respect to any Balloon Loan that is included in the
Mortgage Pool or in such Loan Group, as applicable, as to which the
related Stated Maturity Date occurred during or prior to the related
Collection Period, any payment of principal (exclusive of any Principal
Prepayment and any amount described in subclause (d) of this definition)
that was made by or on behalf of the related Mortgagor during the related
Collection Period, net of any portion of such payment that represents a
recovery of the principal portion of any Monthly Payment (other than a
Balloon Payment) due, or the principal portion of any Assumed Monthly
Payment deemed due, in respect of such Balloon Loan on a Due Date during
or prior to the related Collection Period and not previously recovered;
(d) all Liquidation Proceeds (net of Liquidation Expenses),
Insurance Proceeds (net of related expenses) and Condemnation Proceeds
(net of related expenses) received on or in respect of the Mortgage Loans
during the related Collection Period (including any amount related to the
Loss of Value Payments to the extent that such amount was transferred into
the Certificate Account pursuant to Section 3.05(g) during the related
Collection Period) that were identified and applied by the Master Servicer
as recoveries of principal thereof, in each case net of any portion of
such amounts that represents a recovery of the principal portion of any
Monthly Payment (other than a Balloon Payment) due, or of the principal
portion of any Assumed Monthly Payment deemed due, in respect of any such
Mortgage Loan on a Due Date during or prior to the related Collection
Period and not previously recovered; and
(e) all Liquidation Proceeds (net of Liquidation Expenses),
Insurance Proceeds (net of related expenses), Condemnation Proceeds(net of
related expenses) and REO Revenues (net of related expenses) received on
or in respect of any REO Properties during the related Collection Period
that were identified and applied by the Master Servicer as recoveries of
principal of the related REO Loans, in each case net of any portion of
such amounts that represents a recovery of the principal portion of any
Monthly Payment (other than a Balloon Payment) due, or of the principal
portion of any Assumed Monthly Payment deemed due, in respect of any such
REO Loan or the predecessor Mortgage Loan on a Due Date during or prior to
the related Collection Period and not previously recovered.
"CUSIP Number": With respect to each Certificate, the identification
number provided by the CUSIP Service Bureau and appearing on the face of such
Certificate.
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage Files, which
Person shall not be (i) the Depositor or an Affiliate thereof or (ii) a Mortgage
Loan Seller or an Affiliate thereof, unless in either case the Custodian is
unaffiliated with the Trustee.
"Cut-off Date": December 1, 2007 or, with respect to Loan Nos.
3401602, 3409042 and 3409088, the related origination date (such Loan numbers as
set forth on the Mortgage Loan Schedule attached hereto as Schedule I).
"Cut-off Date Balance": With respect to any Mortgage Loan or
Companion Loan, the outstanding principal balance of such Loan as of the Cut-off
Date, net of all unpaid payments of principal due in respect thereof on or
before such date.
"CVS - Gulfport Indemnified Parties": As defined in Section 6.03(f).
"CVS - Gulfport Intercreditor Agreement": The A Notes Intercreditor
Agreement dated as of November 1, 2007 by and between the CVS - Gulfport Note
A-1 Holder and the CVS - Gulfport 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.
"CVS - Gulfport Master Servicer": The master servicer under the CVS
- Gulfport Servicing Agreement, which as of the Closing Date is Bank of America,
National Association.
"CVS - Gulfport Nonrecoverable Servicing Advance": With respect to
the CVS - Gulfport Pari Passu Mortgage Loan, a "Nonrecoverable Servicing
Advance" as defined in the CVS - Gulfport Servicing Agreement.
"CVS - Gulfport Note A-1": The Mortgage Note related to CVS -
Gulfport Pari Passu Whole Loan that is not included in the Trust Fund, which is
pari passu in right of payment to the CVS - Gulfport Note A-2 as set forth in
the CVS - Gulfport Intercreditor Agreement.
"CVS - Gulfport Note A-1 Holder": The holder of the CVS - Gulfport
Note A-1, as of the Closing Date, the trust established in connection with the
issuance of the Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-4.
"CVS - Gulfport Note A-2": With respect to the CVS - Gulfport Pari
Passu Mortgage Loan, the related Mortgage Note that is included in the Trust
Fund.
"CVS - Gulfport Note A-2 Holder": The holder of the CVS - Gulfport
Note A-2, initially Bank of America, N.A.
"CVS - Gulfport Noteholders": The CVS - Gulfport Note A-1 Holder and
CVS - Gulfport Note A-2 Holder.
"CVS - Gulfport Pari Passu Companion Loan": The loan evidenced by
the CVS - Gulfport Note A-1.
"CVS - Gulfport Pari Passu Companion Loan Holder": The holder of
the CVS - Gulfport Pari Passu Companion Loan.
"CVS - Gulfport Pari Passu Mortgage Loan": The Mortgage Loan
identified as Loan No. 3406313 in the Mortgage Loan Schedule, which, together
with the CVS - Gulfport Note A-1, is secured by a Mortgage on the related
Mortgaged Property.
"CVS - Gulfport Pari Passu Whole Loan": The CVS - Gulfport Pari
Passu Mortgage Loan together with the CVS - Gulfport Pari Passu Companion Loan.
References herein to CVS - Gulfport Pari Passu Whole Loan shall be construed to
refer to the aggregate indebtedness under the CVS - Gulfport Note A-1 and the
CVS - Gulfport Note A-2.
"CVS - Gulfport Servicing Agreement": That certain pooling and
servicing agreement dated as of November 1, 2007 among Banc of America
Commercial Mortgage Inc., as depositor, the CVS - Gulfport Master Servicer, as
master servicer, the CVS - Gulfport Special Servicer, as special servicer, and
the CVS - Gulfport Trustee, as trustee and REMIC administrator, which agreement
relates to the Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-4.
"CVS - Gulfport Special Servicer": The special servicer under the
CVS - Gulfport Servicing Agreement, which as of the Closing Date is Midland Loan
Services, Inc.
"CVS - Gulfport Trustee": The trustee under the CVS - Gulfport
Servicing Agreement, which as of the Closing Date is Xxxxx Fargo Bank, N.A.
"CVS Portfolio Louisiana Indemnified Parties": As defined in Section
6.03(d).
"CVS Portfolio Louisiana Intercreditor Agreement": The A Notes
Intercreditor Agreement dated as of November 1, 2007 by and between the CVS
Portfolio Louisiana Note A-1 Holder and the CVS Portfolio Louisiana 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.
"CVS Portfolio Louisiana Master Servicer": The master servicer under
the CVS Portfolio Louisiana Servicing Agreement, which as of the Closing Date is
Bank of America, National Association.
"CVS Portfolio Louisiana Nonrecoverable Servicing Advance": With
respect to the CVS Portfolio Louisiana Pari Passu Mortgage Loan, a
"Nonrecoverable Servicing Advance" as defined in the CVS Portfolio Louisiana
Servicing Agreement.
"CVS Portfolio Louisiana Note A-1": The Mortgage Note related to CVS
Portfolio Louisiana Pari Passu Whole Loan that is not included in the Trust
Fund, which is pari passu in right of payment to the CVS Portfolio Louisiana
Note A-2 as set forth in the CVS Portfolio Louisiana Intercreditor Agreement.
"CVS Portfolio Louisiana Note A-1 Holder": The holder of the CVS
Portfolio Louisiana Note A-1, as of the Closing Date, the trust established in
connection with the issuance of the Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-4.
"CVS Portfolio Louisiana Note A-2": With respect to the CVS
Portfolio Louisiana Pari Passu Mortgage Loan, the related Mortgage Note that is
included in the Trust Fund.
"CVS Portfolio Louisiana Note A-2 Holder": The holder of the CVS
Portfolio Louisiana Note A-2, initially Bank of America, N.A.
"CVS Portfolio Louisiana Noteholders": The CVS Portfolio Louisiana
Note A-1 Holder and CVS Portfolio Louisiana Note A-2 Holder.
"CVS Portfolio Louisiana Pari Passu Companion Loan": The loan
evidenced by the CVS Portfolio Louisiana Note A-1.
"CVS Portfolio Louisiana Pari Passu Companion Loan Holder": The
holder of the CVS Portfolio Louisiana Pari Passu Companion Loan.
"CVS Portfolio Louisiana Pari Passu Mortgage Loan": The Mortgage
Loan identified as Loan No. 3406312 in the Mortgage Loan Schedule, which,
together with the CVS Portfolio Louisiana Note A-1, is secured by a Mortgage on
the related Mortgaged Properties.
"CVS Portfolio Louisiana Pari Passu Whole Loan": The CVS Portfolio
Louisiana Pari Passu Mortgage Loan together with the CVS Portfolio Louisiana
Pari Passu Companion Loan. References herein to CVS Portfolio Louisiana Pari
Passu Whole Loan shall be construed to refer to the aggregate indebtedness under
the CVS Portfolio Louisiana Note A-1 and the CVS Portfolio Louisiana Note A-2.
"CVS Portfolio Louisiana Servicing Agreement": That certain pooling
and servicing agreement dated as of November 1, 2007 among Banc of America
Commercial Mortgage Inc., as depositor, the CVS Portfolio Louisiana Master
Servicer, as master servicer, the CVS Portfolio Louisiana Special Servicer, as
special servicer, and the CVS Portfolio Louisiana Trustee, as trustee and REMIC
administrator, which agreement relates to the Banc of America Commercial
Mortgage Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-4.
"CVS Portfolio Louisiana Special Servicer": The special servicer
under the CVS Portfolio Louisiana Servicing Agreement, which as of the Closing
Date is Midland Loan Services, Inc.
"CVS Portfolio Louisiana Trustee": The trustee under the CVS
Portfolio Louisiana Servicing Agreement, which as of the Closing Date is Xxxxx
Fargo Bank, N.A.
"CVS Portfolio Texas Indemnified Parties": As defined in Section
6.03(e).
"CVS Portfolio Texas Intercreditor Agreement": The A Notes
Intercreditor Agreement dated as of November 1, 2007 by and between the CVS
Portfolio Texas Note A-1 Holder and the CVS Portfolio Texas 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.
"CVS Portfolio Texas Master Servicer": The master servicer under the
CVS Portfolio Texas Servicing Agreement, which as of the Closing Date is Bank of
America, National Association.
"CVS Portfolio Texas Nonrecoverable Servicing Advance": With respect
to the CVS Portfolio Texas Pari Passu Mortgage Loan, a "Nonrecoverable Servicing
Advance" as defined in the CVS Portfolio Texas Servicing Agreement.
"CVS Portfolio Texas Note A-1": The Mortgage Note related to CVS
Portfolio Texas Pari Passu Whole Loan that is not included in the Trust Fund,
which is pari passu in right of payment to the CVS Portfolio Texas Note A-2 as
set forth in the CVS Portfolio Texas Intercreditor Agreement.
"CVS Portfolio Texas Note A-1 Holder": The holder of the CVS
Portfolio Texas Note A-1, as of the Closing Date, the trust established in
connection with the issuance of the Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-4.
"CVS Portfolio Texas Note A-2": With respect to the CVS Portfolio
Texas Pari Passu Mortgage Loan, the related Mortgage Note that is included in
the Trust Fund.
"CVS Portfolio Texas Note A-2 Holder": The holder of the CVS
Portfolio Texas Note A-2, initially Bank of America, N.A.
"CVS Portfolio Texas Noteholders": The CVS Portfolio Texas Note A-1
Holder and CVS Portfolio Texas Note A-2 Holder.
"CVS Portfolio Texas Pari Passu Companion Loan": The loan evidenced
by the CVS Portfolio Texas Note A-1.
"CVS Portfolio Texas Pari Passu Companion Loan Holder": The holder
of the CVS Portfolio Texas Pari Passu Companion Loan.
"CVS Portfolio Texas Pari Passu Mortgage Loan": The Mortgage Loan
identified as Loan No. 3405982 in the Mortgage Loan Schedule, which, together
with the CVS Portfolio Texas Note A-1, is secured by a Mortgage on the related
Mortgaged Properties.
"CVS Portfolio Texas Pari Passu Whole Loan": The CVS Portfolio Texas
Pari Passu Mortgage Loan together with the CVS Portfolio Texas Pari Passu
Companion Loan. References herein to CVS Portfolio Texas Pari Passu Whole Loan
shall be construed to refer to the aggregate indebtedness under the CVS
Portfolio Texas Note A-1 and the CVS Portfolio Texas Note A-2.
"CVS Portfolio Texas Servicing Agreement": That certain pooling and
servicing agreement dated as of November 1, 2007 among Banc of America
Commercial Mortgage Inc., as depositor, the CVS Portfolio Texas Master Servicer,
as master servicer, the CVS Portfolio Texas Special Servicer, as special
servicer, and the CVS Portfolio Texas Trustee, as trustee and REMIC
administrator, which agreement relates to the Banc of America Commercial
Mortgage Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-4.
"CVS Portfolio Texas Special Servicer": The special servicer under
the CVS Portfolio Texas Servicing Agreement, which as of the Closing Date is
Midland Loan Services, Inc.
"CVS Portfolio Texas Trustee": The trustee under the CVS Portfolio
Texas Servicing Agreement, which as of the Closing Date is Xxxxx Fargo Bank,
N.A.
"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
Mortgage Loan Seller (prior to the Closing Date) or the Master Servicer or the
Special Servicer (following the Closing Date), to (y) the product of the amount
of the Monthly Payment in effect for such Loan as of such date of determination,
multiplied by the number of months represented in the financial statements. The
Master Servicer may, in accordance with CMSA reporting standards, report Net
Cash Flow with respect to each Mortgaged Property where one or more Loans are
secured by multiple Mortgaged Properties; provided, however, for purposes of
determining Debt Service Coverage Ratio compliance, calculations shall be made
at the Loan level.
"Default Charges": Any Default Interest and/or late payment charges
that are paid or payable, as the context may require, in respect of any Loan or
REO Loan.
"Default Interest": With respect to any Loan (or successor REO
Loan), any amounts collected thereon, other than late payment charges or
Prepayment Premiums, that represent interest in excess of interest accrued on
the principal balance of such Loan (or REO Loan) at the related Mortgage Rate,
such excess interest arising out of a default under such Loan.
"Defaulted Serviced Loan": A Serviced Loan (i) that is delinquent 60
days or more in respect to a Monthly Payment (not including the Balloon Payment)
or (ii) that is delinquent in respect of its Balloon Payment unless (w) the
related Borrower is actively seeking a refinancing commitment, (x) the related
Borrower continues to make payments in the amount of its Assumed Monthly
Payment, (y) subject to Section 3.21(f), the Directing Certificateholder
consents, and (z) the related Mortgagor has delivered to the Master Servicer, on
or before the 60th day after the Due Date of such Balloon Payment, a refinancing
commitment reasonably acceptable to the Master Servicer, for such longer period,
not to exceed 120 days beyond the Due Date of such Balloon Payment, during which
the refinancing would occur (provided that if such refinancing does not occur
during such time specified in the commitment, the related Serviced Loan will
immediately become a Defaulted Serviced Loan), in either case such delinquency
to be determined without giving effect to any grace period permitted by the
related Mortgage or Mortgage Note and without regard to any acceleration of
payments under the related Mortgage and Mortgage Note, or (iii) as to which the
Master Servicer or Special Servicer has, by written notice to the related
Mortgagor, accelerated the maturity of the indebtedness evidenced by the related
Mortgage Note.
"Defaulting Party": As defined in Section 7.01(b).
"Defective Mortgage Loan": Any Mortgage Loan as to which there
exists a Material Breach or a Material Document Defect that was not cured in all
material respects.
"Definitive Certificate": As defined in Section 5.03(a).
"Deleted Mortgage Loan": A Defective Mortgage Loan that is
repurchased from the Trust or replaced with one or more Replacement Mortgage
Loans, in either case as contemplated by Section 2.03.
"Denomination": As defined in Section 5.01(a).
"Depositor": Banc of America Commercial Mortgage Inc., or its
successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named. The nominee of the initial Depository for purposes
of registering those Certificates that are to be Book-Entry Certificates, is
Cede & Co. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(3) of the Uniform Commercial Code of the State of New
York and a "clearing agency" registered pursuant to the provisions of Section
17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Depository Rules": As defined in Section 5.02(b).
"Determination Date": With respect to any Distribution Date, the
earlier of (i) the sixth day of the month in which such Distribution Date
occurs, or if such sixth day is not a Business Day, the immediately preceding
Business Day, and (ii) fourth Business Day before such Distribution Date.
"Determination Information": As defined in Section 3.18(b).
"Directing Certificateholder": The Controlling Class
Certificateholder (or its designee) selected by the Majority Certificateholder
of the Controlling Class, as certified by the Trustee from time to time;
provided, however, that (i) absent such selection, or (ii) until a Directing
Certificateholder is so selected, or (iii) upon receipt of a notice from a
majority of the Controlling Class, by Certificate Principal Balance, that a
Directing Certificateholder is no longer designated, the Controlling Class
Certificateholder that owns the largest aggregate Certificate Principal Balance
of the Controlling Class will be the Directing Certificateholder. The initial
Directing Certificateholder is Centerline REIT Inc.
"Directly Operate": With respect to any REO Property (other than any
REO Property related to a Non-Serviced Loan), the furnishing or rendering of
services to the tenants thereof, the management or operation of such REO
Property, the holding of such REO Property primarily for sale to customers
(other than the sale of a REO Property pursuant to Section 3.18, the performance
of any construction work thereon or any use of such REO Property in a trade or
business conducted by REMIC I other than through an Independent Contractor;
provided, however, the Special Servicer (or any Sub-Servicer on behalf of the
Special Servicer) shall not be considered to Directly Operate a REO Property
solely because the Special Servicer (or any Sub-Servicer on behalf of the
Special Servicer) establishes rental terms, chooses tenants, enters into or
renews leases, deals with taxes and insurance, or makes decisions as to, or
funds, repairs or capital expenditures with respect to such REO Property
(including, without limitation, construction activity to effect repairs or in
conjunction with leasing activity).
"Discount Rate": With respect to any applicable Prepayment Premium
calculation, is the yield on the United Stated Treasury issue with a maturity
date closest to the Maturity Date for the Mortgage Loan being prepaid (if
applicable, converted to a monthly compounded nominal yield), or an
interpolation thereof, in any case as specified and used in accordance with the
related loan documents in calculating the Prepayment Premium with respect to the
related prepayment.
"Disqualified Non-U.S. Person": With respect to a Class R-I or Class
R-II Certificate, any Non-U.S. Person or agent thereof other than (i) a Non-U.S.
Person that holds the Class R-I or Class R-II Certificate in connection with the
conduct of a trade or business within the United States and has furnished the
transferor and the Certificate Registrar with an effective IRS Form W-8ECI (or
successor form) or (ii) a Non-U.S. Person that has delivered to both the
transferor and the Certificate Registrar an opinion of a nationally recognized
tax counsel to the effect that the transfer of the Class R-I or Class R-II
Certificate to it is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such transfer of the Class R-I or
Class R-II Certificate will not be disregarded for federal income tax purposes.
"Disqualified Organization": Any of the following: (i) the United
States or a possession thereof, any State or any political subdivision thereof,
or any agency or instrumentality of any of the foregoing (other than an
instrumentality that is a corporation if all of its activities are subject to
tax and, except for Xxxxxxx Mac, a majority of its board of directors is not
selected by any such governmental unit), (ii) a foreign government,
international organization, or any agency or instrumentality of either of the
foregoing, (iii) any organization (except certain farmers' cooperatives
described in Section 521 of the Code) that is exempt from the tax imposed by
Chapter 1 of the Code (unless such organization is subject to the tax imposed by
Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381 of the Code or (v)
any other Person so designated by the REMIC Administrator based upon an Opinion
of Counsel (provided to the Certificate Administrator 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, the Accrued Certificate
Interest in respect of such Class of Certificates 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 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 based on Accrued Certificate
Interest for each such Class of Certificates for such Distribution Date.
"Distribution Account": The segregated account or accounts created
and maintained by the Certificate Administrator pursuant to Section 3.04(b) in
trust for the Certificateholders, which shall be entitled "LaSalle Bank National
Association, as Certificate Administrator on behalf of Xxxxx Fargo Bank, N.A.,
as Trustee, in trust for the registered holders of Banc of America Commercial
Mortgage Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-5,
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
January 2008.
"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) or the
Certificate Administrator (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 this 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 and the Certificate
Administrator, each 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 and the Certificate Administrator,
each acting in its fiduciary capacity and subject to regulations regarding
fiduciary funds on deposit therein substantially similar to 12 C.F.R. ss.9.10(b)
that has a combined capital surplus of at least $50,000,000, or (iv) any other
account that would not result in the downgrade, qualification (if applicable) or
withdrawal of the rating then assigned by either Rating Agency to any Class of
Certificates or Companion Loan Securities (as confirmed in writing by each
Rating Agency).
"Emergency Advance": Any Servicing Advance, whether or not it is a
Servicing Advance that, pursuant hereto, the Special Servicer is required to
make or to request the Master Servicer to make, that must be made within five
Business Days of the Special Servicer's becoming aware that it must be made to
avoid any material penalty, any material harm to a Mortgaged Property or any
other material adverse consequence to the Trust Fund.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Restricted Certificate": Any Non-Investment Grade Sequential
Pay Certificate; provided that any such Certificate (a) will cease to be
considered an ERISA Restricted Certificate and (b) will cease to be subject to
the transfer restrictions contained in Section 5.02(c) if, as of the date of a
proposed transfer of such Certificate, either (i) it is rated in one of the four
highest generic ratings categories by a Rating Agency or (ii) relevant
provisions of ERISA would permit transfer of such Certificate to a Plan.
"Escrow Payment": Any payment received by the Master Servicer or the
Special Servicer for the account of any Mortgagor for application toward the
payment of real estate taxes, assessments, insurance premiums and similar items
in respect of the related Mortgaged Property.
"Euroclear": Euroclear Bank S.A./N.V., as operator of the Euroclear
System, or its successor in such capacity.
"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
Certificate Administrator pursuant to Section 4.06, which shall be entitled
"LaSalle Bank National Association, as Certificate Administrator on behalf of
Xxxxx Fargo Bank, N.A., as Trustee, in trust for the registered Holders of Banc
of America Commercial Mortgage Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-5, 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
Certificate Administrator pursuant to Section 3.04(c)(iv) in trust for the
Certificateholders, which shall be entitled "LaSalle Bank National Association,
as Certificate Administrator on behalf of Xxxxx Fargo Bank, N.A., as Trustee, in
trust for the registered holders of Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-5, 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 Mortgage Loan Seller pursuant to the
Mortgage Loan Purchase and Sale Agreement or purchased by the Master Servicer,
the Special Servicer or any Controlling Class Certificateholder(s) pursuant to
Section 9.01), that there has been a recovery of all related Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds and other payments or recoveries
that will ultimately be recoverable.
With respect to any Non-Serviced Mortgage Loan, the term "Final
Recovery Determination" shall include any comparable determination made by the
related Non-Serviced Loan Master Servicer or Non-Serviced Loan Special Servicer,
as applicable, under the Non-Serviced Loan Servicing Agreement with respect to
such Non-Serviced Mortgage Loan or any related REO Property.
"FIRREA": The Financial Institutions Reform, Recovery and
Enforcement Act of 1989 (as amended).
"Fitch": Fitch, Inc. or its successor in interest. If neither Fitch
nor any successor remains in existence, "Fitch" shall be deemed to refer to such
other nationally recognized statistical rating agency or other comparable Person
designated by the Depositor, notice of which designation shall be given to the
Trustee, the Master Servicer, the Special Servicer, the Certificate
Administrator 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": 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.
"Green Oak Village Place A/B Companion Loan": The loan evidenced by
the Green Oak Village Place Note B, which is not an asset of the Trust Fund.
"Green Oak Village Place A/B Companion Loan Holder": The holder of
the Green Oak Village Place A/B Companion Loan.
"Green Oak Village Place A/B Mortgage Loan": The Mortgage Loan
identified as Loan No. 3403670 in the Mortgage Loan Schedule, which, together
with the Green Oak Village Place Note B, is secured by a Mortgage on the Green
Oak Village Place Mortgaged Property.
"Green Oak Village Place A/B Whole Loan": The Green Oak Village
Place A/B Mortgage Loan, together, with the Green Oak Village Place A/B
Companion Loan. References herein to the Green Oak Village Place A/B Whole Loan
shall be construed to refer to the aggregate indebtedness under the Green Oak
Village Place Note A and the Green Oak Village Place Note B.
"Green Oak Village Place A/B Whole Loan Purchase Option": As defined
in Section 3.18(l).
"Green Oak Village Place A/B Whole Loan Purchase Option Holder": As
defined in Section 3.18(l).
"Green Oak Village Place Control Appraisal Period": The meaning
assigned to "Control Appraisal Period" in the Green Oak Village Place
Intercreditor Agreement.
"Green Oak Village Place Controlling Holder": The meaning assigned
to "Controlling Holder" in the Green Oak Village Place Intercreditor Agreement
(or an "Operating Advisor", as defined in the Green Oak Village Place
Intercreditor, acting on behalf of the Green Oak Village Place Controlling
Holder). The initial Green Oak Village Place Controlling Holder shall be set
forth on Schedule VII hereto.
"Green Oak Village Place Intercreditor Agreement": The Intercreditor
Agreement dated as of December 1, 2007 and between the Green Oak Village Place
Note A Holder and the Green Oak Village Place 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.
"Green Oak Village Place Mortgaged Property": The Mortgaged Property
that secures the Green Oak Village Place A/B Whole Loan.
"Green Oak Village Place Note A": With respect to the Green Oak
Village Place A/B Mortgage Loan, the related Mortgage Note that is included in
the Trust Fund.
"Green Oak Village Place Note A Holder": The holder of the Green Oak
Village Place Note A, initially Bank of America, National Association.
"Green Oak Village Place Note B": The Mortgage Note related to the
Green Oak Village Place A/B Companion Loan that is not included in the Trust
Fund, which is subordinated in right of payment to the Green Oak Village Place
Note A to the extent set forth in the Green Oak Village Place Intercreditor
Agreement.
"Green Oak Village Place Note B Holder": The holder of the Green Oak
Village Place Note B, initially Bank of America, N.A.
"Green Oak Village Place Noteholders": The Green Oak Village Place
Note A Holder and the Green Oak Village Place Note B Holder.
"Ground Lease": The ground lease pursuant to which any Mortgagor
holds a leasehold interest in the related Mortgaged Property and any estoppels
or other agreements executed and delivered by the ground lessor in favor of the
lender under the Mortgage Loan.
"Group 1 Mortgage Loan": Any Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Loan Group 1.
"Group 2 Mortgage Loan": Any Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Loan Group 2.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including, without limitation, those so
identified pursuant to CERCLA or any other U.S. federal, state or local
environmental related laws and regulations, and specifically including, without
limitation, asbestos and asbestos-containing materials, polychlorinated
biphenyls ("PCBs"), radon gas, petroleum and petroleum products, urea
formaldehyde and any substances classified as being "in inventory", "usable work
in process" or similar classification that would, if classified as unusable, be
included in the foregoing definition.
"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 Certificate Administrator, 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
Certificate Administrator, the REMIC Administrator or any Affiliate thereof, and
(iii) is not connected with the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Certificate Administrator, 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 Certificate Administrator, 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
Certificate Administrator, 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 Certificate Administrator, the REMIC Administrator or the Trust, delivered
to the Trustee, the Certificate Administrator 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, the Certificate Administrator
and the REMIC Administrator of an Opinion of Counsel, which shall be at no
expense to the Trustee, the Certificate Administrator, 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 $1,858,595,583.
"Initial Class Principal Balance": With respect to any Class of
Sequential Pay Certificates, the initial Class Principal Balance thereof as of
the Closing Date, in each case as set forth in the Preliminary Statement hereto.
"Initial Pool Balance": The aggregate Cut-off Date Balance of all
the Mortgage Loans included in the Trust Fund as of the Closing Date.
"Initial Resolution Period": As defined in Section 2.03.
"Institutional Accredited Investor": As defined in Section 5.02(b).
"Insurance Policy": With respect to any Loan or REO Property, any
hazard insurance policy, seismic (earthquake) insurance policy, business
interruption insurance policy, flood insurance policy, title policy or other
insurance policy that is maintained from time to time in respect of such Loan
(or the related Mortgaged Property) or in respect of such REO Property, as the
case may be.
"Insurance Proceeds": Proceeds paid under any Insurance Policy, to
the extent such proceeds are not applied to the restoration of the related
Mortgaged Property or REO Property or released to the Mortgagor or any other
third party as permitted under the related loan documents, in either case, in
accordance with the Servicing Standard and with applicable law.
"Intercreditor Agreements": The Sawgrass Xxxxx Intercreditor
Agreement, Arundel Xxxxx Intercreditor Agreement, the Xxxxx Xxxxxx Building
Intercreditor Agreement, the Green Oak Village Place Intercreditor Agreement,
the West Hartford Portfolio Intercreditor Agreement, the CVS Portfolio Louisiana
Intercreditor Agreement, CVS Portfolio Texas Intercreditor Agreement and the CVS
- Gulfport Intercreditor Agreement.
"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 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 and each Class of REMIC II Regular Certificates for any
Distribution Date, the calendar month immediately preceding the month in which
such Distribution Date occurs.
"Interest Deposit Amount": The amount of interest that would have
accrued at the related Mortgage Rate on the Stated Principal Balance of such
Mortgage Loan as of January 1, 2008 had such Mortgage Loan been originated on
December 1, 2007, for the period from and including December 1, 2007 to but
excluding January 1, 2008. With respect to each applicable Mortgage Loan, the
related Loan Number from the Mortgage Loan Schedule and the amount of the
related interest deposit is as follows:
o Loan No. 3401602, $72,656.25.
o Loan No. 3409042, $62,286.23.
o Loan No. 3409088, $22,797.29.
"Interest Reserve Account": The segregated account or sub-account of
the Certificate Account created and maintained by the Master Servicer pursuant
to Section 4.05 in trust for the Certificateholders, which shall be entitled
"Bank of America, National Association, as Master Servicer, on behalf of Xxxxx
Fargo Bank, N.A., as Trustee, in trust for the registered holders of Banc of
America Commercial Mortgage Inc., Commercial Mortgage Pass-Through Certificates,
Series 2007-5, 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.
"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 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 Note B Holder (if the Defaulted Serviced Loan is an A/B
Mortgage Loan included in the related A/B Whole Loan) or an assignee of such
Person pursuant to Section 3.18(c) or the related Mezzanine Loan Holder (if the
related Defaulted Serviced Loan has a related Mezzanine Loan) pursuant to any
Mezzanine Intercreditor Agreement; (v) such Loan is purchased by the Special
Servicer or the Master Servicer pursuant to Section 9.01; or (vi) in the case of
an A/B Whole Loan, such A/B Whole Loan is purchased by the related A/B Whole
Loan Purchase Option Holder or its designee pursuant to the related
Intercreditor Agreement. With respect to any REO Property (and the related REO
Loan), any of the following events: (i) a Final Recovery Determination is made
with respect to such REO Property or (ii) such REO Property is purchased by the
Master Servicer or the Special Servicer pursuant to Section 9.01.
"Liquidation Expenses": All customary, reasonable and necessary
"out-of-pocket" costs and expenses due and owing (but not otherwise covered by
Servicing Advances) in connection with the liquidation of any Specially Serviced
Loan or REO Property (other than any REO Property related to a Non-Serviced
Loan) pursuant to Section 3.09 or Section 3.18 (including, without limitation,
legal fees and expenses, committee or referee fees and, if applicable, brokerage
commissions and conveyance taxes).
"Liquidation Fee": With respect to each Specially Serviced Loan or
REO Property (other than any REO Property related to a Non-Serviced Loan), the
fee designated as such and payable to the Special Servicer pursuant to the third
paragraph of Section 3.11(c). Notwithstanding the foregoing and for the
avoidance of doubt, no Liquidation Fee shall be payable in connection with (a)
the purchase of a Defaulted Serviced Loan by the Majority Certificateholder of
the Controlling Class pursuant to any applicable purchase right set forth in
Section 3.18(c) or Section 3.18(l) or with respect to a purchase of a related
Defaulted Serviced Loan at its fair value as determined in Section 3.18, unless
such purchase is by an assignee of the Majority Certificateholder of the
Controlling Class or the Special Servicer, such assignee is not an affiliate of
the Majority Certificateholder of the Controlling Class or the Special Servicer,
such assignment is for no material consideration, and provided such purchase
occurs or purchase right is exercised more than 90 days from the date that the
Special Servicer has initially determined the fair value of the related Mortgage
Loan; (b) the purchase of any Mortgage Loan by the holder of a subordinate note
or a Mezzanine Loan (or its designee) pursuant to a purchase option contained in
the related intercreditor agreement, unless such purchase occurs or purchase
right is exercised more than 90 days from the date that the Special Servicer has
initially determined the fair value of the related Mortgage Loan; (c) the
purchase option of the Majority Certificateholder of the Controlling Class, the
Master Servicer or the Special Servicer pursuant to Section 9.01; (d) the
repurchase by the Mortgage Loan Seller of a Mortgage Loan so required to be
repurchased by it pursuant to Section 4 of the Mortgage Loan Purchase and Sale
Agreement and Section 2.03 within the time frame set forth in the Initial
Resolution Period and/or the Resolution Extension Period (if applicable); or (e)
in connection with a Loss of Value Payment by the Mortgage Loan Seller.
"Liquidation Fee Rate": With respect to each Specially Serviced Loan
or REO Property as to which a Liquidation Fee is payable, 1.0% (100 basis
points).
"Liquidation Proceeds": All cash amounts (other than Insurance
Proceeds, Condemnation Proceeds and REO Revenues) received by the Master
Servicer or the Special Servicer in connection with: (i) the liquidation of a
Mortgaged Property or other collateral constituting security for a Defaulted
Serviced Loan through trustee's sale, foreclosure sale, REO Disposition or
otherwise, exclusive of any portion thereof required to be released to the
related Mortgagor in accordance with applicable law and/or the terms and
conditions of the related loan documents; (ii) the realization upon any
deficiency judgment obtained against a Mortgagor; (iii) the purchase of a
Defaulted Serviced Loan (A) by any Controlling Class Certificateholder(s)
pursuant to Section 3.18(c), (B) by the Special Servicer pursuant to Section
3.18(c), (C) with respect to a Non-Serviced Companion Loan, the purchase thereof
by the parties specified in the related Non-Serviced Loan Servicing Agreement
pursuant to a similar provision, (D) with respect to a Securitized Companion
Loan (included in a Serviced Whole Loan), the purchase thereof by the parties
specified in the related Securitized Companion Loan Servicing Agreement pursuant
to a similar provision, (E) by any A/B Whole Loan Purchase Option Holder
pursuant to the related Intercreditor Agreement or (F) by the related Mezzanine
Loan Holder pursuant to the related Mezzanine Intercreditor Agreement; (iv) (1)
the repurchase of a Mortgage Loan by the Mortgage Loan Seller pursuant to the
Mortgage Loan Purchase and Sale Agreement, (2) with respect to a Non-Serviced
Mortgage Loan, by the seller thereof pursuant to the Non-Serviced Loan Servicing
Agreement or related mortgage loan purchase agreement or (3) with respect to a
Securitized Companion Loan (included in a Serviced Whole Loan), the repurchase
thereof by the seller thereof pursuant to the Securitized Companion Loan
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 Mortgage Loan Seller pursuant to the Mortgage Loan Purchase and Sale
Agreement (such cash amounts being any Substitution Shortfall Amounts); (vi) the
purchase of a Mortgage Loan or REO Property by the Master Servicer, the Special
Servicer or any Controlling Class Certificateholder(s) pursuant to Section 9.01;
or (vii) except for purposes of Section 3.11(c), the transfer of any Loss of
Value Payments from the Loss of Value Reserve Fund to the Certificate Account.
"Loan": Any Mortgage Loan, Whole Loan or Companion Loan.
"Loan Group": Together, Loan Group 1 and Loan Group 2.
"Loan Group 1": Collectively, all of the Mortgage Loans that are
Group 1 Mortgage Loans and any successor REO Loans with respect thereto.
"Loan Group 1 Available Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Available Distribution Amount
attributable to Loan Group 1.
"Loan Group 1 Principal Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Principal Distribution Amount
attributable to Loan Group 1.
"Loan Group 2": Collectively, all of the Mortgage Loans that are
Group 2 Mortgage Loans and any successor REO Loans with respect thereto.
"Loan Group 2 Available Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Available Distribution Amount
attributable to Loan Group 2.
"Loan Group 2 Principal Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Principal Distribution Amount
attributable to Loan Group 2.
"Lockbox Account": With respect to any Lockbox Agreement, the
account(s) established pursuant to the terms of such agreement.
"Lockbox Agreement": With respect to any Loan, the lockbox
agreement, if any, between the related originator and the Borrower, pursuant to
which an account created pursuant to the related loan documents to receive
revenues therefrom, if any, may have been established.
"Loss of Value Payment": As defined in Section 2.03(i).
"Loss of Value Reserve Fund": The "outside reserve fund" (within the
meaning of Treasury Regulations Section 1.860G-2(h)) designated as such pursuant
to Section 2.12. The Loss of Value Reserve Fund will be part of the Trust, but
not part of any Grantor Trust, REMIC I or REMIC II.
"MAI": Member of the Appraisal Institute.
"Majority Certificateholder": With respect to any specified Class or
Classes of Certificates, as of any date of determination, any Holder or
particular group of Holders of Certificates of such Class or Classes, as the
case may be, entitled to a majority of the Voting Rights allocated to such Class
or Classes, as the case may be.
"Master Servicer": Bank of America, National Association, its
successor in interest or any successor master servicer appointed as herein
provided.
"Master Servicer Remittance Amount": With respect to any Master
Servicer Remittance Date, an amount equal to (a) all amounts on deposit in the
Certificate Account as of the commencement of business on such Master Servicer
Remittance Date, net of (b) any portion of the amounts described in clause (a)
of this definition that represents one or more of the following: (i) collected
Monthly Payments that are due on a Due Date following the end of the related
Collection Period, (ii) any unscheduled payments of principal (including,
without limitation, Principal Prepayments) and interest, Liquidation Proceeds
and Insurance Proceeds received after the end of the related Collection Period,
(iii) any Prepayment Premiums received after the end of the related Collection
Period, (iv) any amounts payable or reimbursable to any Person from the
Certificate Account pursuant to any of clauses (ii) through (xvii) of Section
3.05(a), (v) any Excess Liquidation Proceeds, (vi) any amounts deposited into
the Certificate Account in error, and (vii) with respect to each Mortgage Loan
that accrues interest on an Actual/360 Basis and any Distribution Date relating
to the one-month period preceding the Distribution Date in each February (and in
any January of a year that is not a leap year), an amount equal to the related
Withheld Amount pursuant to Section 4.05; provided that, with respect to the
Master Servicer Remittance Date that occurs in the same calendar month as the
Final Distribution Date, the Master Servicer Remittance Amount will be
calculated without regard to clauses (b)(i), (b)(ii) and (b)(iii) of this
definition; provided, further, in no event shall any amounts be included in the
Master Servicer Remittance Amount to the extent that such amounts are payable to
any Companion Loan Holder pursuant to the related Intercreditor Agreement.
"Master Servicer Remittance Date": The Business Day immediately
preceding each Distribution Date.
"Master Servicing Fee": With respect to each Loan and REO Loan, the
fee payable to the Master Servicer pursuant to Section 3.11(a) and from which
any Primary Servicing Fee is payable (and, (i) in the case of the Sawgrass Xxxxx
Split Mortgage Loan, without duplication of the "Master Servicing Fee" payable
in respect of the Sawgrass Xxxxx Whole Loan under the Sawgrass Xxxxx Servicing
Agreement; (ii) in the case of the Arundel Xxxxx Xxxx Passu Mortgage Loan,
without duplication of the "Master Servicing Fee" payable in respect of the
Arundel Xxxxx Xxxx Passu Whole Loan under the Arundel Xxxxx Servicing Agreement;
(iii) in the case of the CVS Portfolio Louisiana Pari Passu Mortgage Loan,
without duplication of the "Master Servicing Fee" payable in respect of the CVS
Portfolio Louisiana Pari Passu Whole Loan under the CVS Portfolio Louisiana
Servicing Agreement; (iv) in the case of the CVS Portfolio Texas Pari Passu
Mortgage Loan, without duplication of the "Master Servicing Fee" payable in
respect of the CVS Portfolio Texas Pari Passu Whole Loan under the CVS Portfolio
Texas Servicing Agreement; and (v) in the case of the CVS - Gulfport Pari Passu
Mortgage Loan, without duplication of the "Master Servicing Fee" payable in
respect of the CVS - Gulfport Pari Passu Whole Loan under the CVS - Gulfport
Servicing 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 (which
includes the Certificate Administrator Fees) 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 the
Summit Office Campus Mortgage Loan (Loan No. 3407712) (each such Mortgage Loan
name and number as set forth in the Mortgage Loan Schedule attached hereto as
Schedule I) and, with respect to any Mortgage Loan with permitted future
mezzanine indebtedness, such future mezzanine loan.
"Mezzanine Loan Holder": With respect to each Mezzanine Loan, the
related holder of such Mezzanine Loan and, with respect to any Mortgage Loan
with permitted future mezzanine indebtedness, the mezzanine lender under such
future mezzanine loan.
"Modified Serviced Loan": Any Serviced Loan as to which any
Servicing Transfer Event has occurred and that has been modified by the Special
Servicer pursuant to Section 3.20 in a manner that:
(a) affects the amount or timing of any payment of principal or
interest due thereon (other than, or in addition to, bringing current
Monthly Payments with respect to such Serviced Loan);
(b) except as expressly contemplated by the related loan documents,
results in a release of the lien of the Mortgage on any material portion
of the related Mortgaged Property without a corresponding Principal
Prepayment in an amount or the delivery of substitute real property
collateral with a fair market value (as is) that is not less than the fair
market value (as is), as determined by an Appraisal delivered to the
Special Servicer (at the expense of the related Mortgagor and upon which
the Special Servicer may conclusively rely), of the property to be
released; or
(c) in the good faith and reasonable judgment of the Special
Servicer, otherwise materially impairs the security for such Serviced Loan
or reduces the likelihood of timely payment of amounts due thereon.
"Monthly Payment": With respect to any Loan, for any Due Date as of
which such Loan is outstanding, the scheduled monthly payment (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 Certificate Administrator, the
Master Servicer, the Special Servicer and the REMIC Administrator, and specific
ratings of Moody's herein referenced shall be deemed to refer to the equivalent
ratings of the party so designated.
"Mortgage": With respect to any Loan, separately and collectively,
as the context may require, each mortgage, deed of trust and/or other similar
document or instrument (together with any rider, addendum or amendment thereto)
securing the related Mortgage Note and creating a lien on the related Mortgaged
Property.
"Mortgage File": With respect to any Mortgage Loan, subject to
Section 1.04 and Section 2.01, collectively the following documents:
(i) (A) the original executed Mortgage Note, endorsed (either
on the face thereof or pursuant to a separate allonge) "Pay to the
order of Xxxxx Fargo Bank, N.A., as Trustee, in trust for the
registered holders of Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-5,
without recourse" or in blank, and further showing a complete,
unbroken chain of endorsement from the originator (if such
originator is other than the Mortgage Loan Seller); or
alternatively, if the original executed Mortgage Note has been lost,
a lost note affidavit and indemnity from the Mortgage Loan Seller
with a copy of such Mortgage Note, and (B) in the case of each
Companion Loan, a copy of the related executed Mortgage Note;
(ii) an original or a copy of the Mortgage and any intervening
assignments that precede the assignment referred to in clause (iv)
of this definition, in each case (unless the particular item has not
been returned from the applicable recording office) with evidence of
recording indicated thereon;
(iii) an original or a copy of any related Assignment of
Leases (if such item is a document separate from the Mortgage) and
of any intervening assignments thereof that precede the assignment
referred to in clause (v) of this definition, in each case (unless
the particular item has not been returned from the applicable
recording office) with evidence of recording indicated thereon;
(iv) subject to the provisos at the end of this paragraph, (A)
for all Mortgage Loans, an original executed assignment of the
Mortgage in favor of "Xxxxx Fargo Bank, N.A., as Trustee, in trust
for the registered holders of Banc of America Commercial Mortgage
Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-5"
or in blank, in recordable form (except for any missing recording
information with respect to such Mortgage) and (B) in the case of
each Serviced Whole Loan, an original executed assignment of the
Mortgage also to Xxxxx Fargo Bank, N.A. in its capacity as "lead
lender" on behalf of the related Companion Loan Holder, provided
that, if the related Mortgage has not been returned from the
applicable public recording office, such assignment of Mortgage may
exclude the information to be provided by the recording office, and
provided, further, if the related Mortgage has been recorded in the
name of Mortgage Electronic Registration Systems, Inc. ("MERS") or
its designee, no assignment of Mortgage in favor of the Trustee will
be required to be prepared or delivered and instead, the Master
Servicer shall take all actions as are necessary to cause the
Trustee to be shown as, and the Trustee shall take all actions
necessary to confirm that it is shown as, the owner of the related
Mortgage on the records of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained
by MERS;
(v) an original executed assignment of any related Assignment
of Leases (if such item is a document separate from the Mortgage),
in favor of "Xxxxx Fargo Bank, N.A., as Trustee, in trust for the
registered holders of Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-5" or in
blank, in recordable form (except for any missing recording
information with respect to such Assignment of Leases) and in the
case of each Serviced Whole Loan, also to Xxxxx Fargo Bank, N.A. in
its capacity as "lead lender" or on behalf of the related Companion
Loan Holder, provided that if the related Mortgage has been recorded
in the name of MERS or its designee, no assignment of Assignment of
Leases in favor of the Trustee will be required to be prepared or
delivered and instead, the Master Servicer shall take all actions as
are necessary to cause the Trustee to be shown as, and the Trustee
shall take all actions necessary to confirm that it is shown as, the
owner of the related Mortgage on the records of MERS for purposes of
the system of recording transfers of beneficial ownership of
mortgages maintained by MERS;
(vi) originals or copies of any written assumption,
modification, written assurance and substitution agreements in those
instances where the terms or provisions of the Mortgage or Mortgage
Note have been modified or the Mortgage Loan has been assumed, in
each case (unless the particular item has not been returned from the
applicable recording office) with evidence of recording indicated
thereon if the instrument being modified or assumed is a recordable
document;
(vii) the original or a copy of the policy of lender's title
insurance or, if such policy has not yet been issued, a "marked-up"
pro forma title policy or commitment for title insurance marked as
binding and countersigned by the issuer or its authorized agent
either on its face or by an acknowledged closing instruction or
escrow letter;
(viii) filed copies of any prior UCC Financing Statements in
favor of the originator of such Mortgage Loan or in favor of any
assignee prior to the Trustee (but only to the extent the 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 2007-5" or in blank, in a
form that is complete and suitable for filing or recording, and
sufficient to assign to the Trustee the security interest held by
the originator of the Mortgage Loan or its assignee; provided, if
the related Mortgage Loan has been recorded in the name of MERS or
its designee, no UCC Financing Statement in favor of the Trustee
will be required to be prepared or delivered and instead, the Master
Servicer shall take all actions as are necessary to cause the
Trustee, on behalf of the Certificateholders, to be shown as, and
the Trustee shall take all actions necessary to confirm that it is
shown as, the owner of the related Mortgage on the records of MERS
for purposes of the system of recording transfers of beneficial
ownership of mortgages maintained by MERS;
(ix) the original or a copy of any environmental indemnity
agreement relating solely to such Mortgage Loan;
(x) the original or a copy of any power of attorney, guaranty,
loan agreement, Ground Lease and/or Ground Lease estoppels relating
to such Mortgage Loan;
(xi) any original documents (including any security
agreement(s)) relating to, evidencing or constituting Additional
Collateral and, if applicable, the originals or copies of any
intervening assignments thereof;
(xii) the original or a copy of any intercreditor agreement,
co-lender agreement, agreement among noteholders or similar
agreement relating to such Mortgage Loan and a copy of any Letter of
Credit;
(xiii) with respect to any Companion Loan, a copy of the
related Note;
(xiv) with respect to hospitality properties, a copy of the
franchise agreement, an original copy of the comfort letter and any
transfer documents with respect to such comfort letter, if any;
(xv) a copy of the Sawgrass Xxxxx Servicing Agreement, the
Arundel Xxxxx Servicing Agreement, the CVS Portfolio Louisiana
Servicing Agreement, the CVS Portfolio Texas Servicing Agreement or
the CVS - Gulfport Servicing 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
Mortgage Loan Seller after the Closing Date to correct any errors in
accordance with Section 2.02(e);
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or by a Custodian on its behalf such term shall
not be deemed to include such documents and instruments required to be included
therein unless they are actually so received; provided, further, however, on the
Closing Date, with respect to item (iv), the Depositor has delivered to the
Trustee a copy of such assignment of Mortgage in blank and has caused the Master
Servicer to retain the completed assignment of Mortgage for recording as
described below, unless such Mortgage has been recorded in the name of MERS or
its designee.
For the avoidance of doubt, with respect to the Sawgrass Xxxxx Split
Mortgage Loan, the preceding document delivery requirements shall be deemed to
be met by the delivery by the Mortgage Loan Seller of copies of the documents
specified above (other than the Sawgrass Xxxxx Xxxx Passu Note A-5 (and all
intervening endorsements), with respect to which the originals shall be
required), including a copy of the related Mortgage.
For the avoidance of doubt, with respect to the Arundel Xxxxx Xxxx
Passu Mortgage Loan, the preceding document delivery requirements shall be
deemed to be met by the delivery by the Mortgage Loan Seller of copies of the
documents specified above (other than the Arundel Xxxxx Xxxx Passu Note A-2 (and
all intervening endorsements), with respect to which the originals shall be
required), including a copy of the related Mortgage.
For the avoidance of doubt, with respect to the CVS Portfolio
Louisiana Pari Passu Mortgage Loan, the preceding document delivery requirements
shall be deemed to be met by the delivery by the Mortgage Loan Seller of copies
of the documents specified above (other than the CVS Portfolio Louisiana Pari
Passu Note A-2 (and all intervening endorsements), with respect to which the
originals shall be required), including a copy of the related Mortgage.
For the avoidance of doubt, with respect to the CVS Portfolio Texas
Pari Passu Mortgage Loan, the preceding document delivery requirements shall be
deemed to be met by the delivery by the Mortgage Loan Seller of copies of the
documents specified above (other than the CVS Portfolio Texas Pari Passu Note
A-2 (and all intervening endorsements), with respect to which the originals
shall be required), including a copy of the related Mortgage.
For the avoidance of doubt, with respect to the CVS - Gulfport Pari
Passu Mortgage Loan, the preceding document delivery requirements shall be
deemed to be met by the delivery by the Mortgage Loan Seller of copies of the
documents specified above (other than the CVS - Gulfport 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": The mortgage loan
purchase and sale agreement dated as of December 1, 2007 between Bank of America
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 sequence 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 (which includes the
Certificate Administrator Fees) 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 Seller": Bank of America.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Loan, together with any rider, addendum or
amendment thereto.
"Mortgage Pool": Collectively, all of the Mortgage Loans and any
successor REO Loans. The Mortgage Pool does not include any Companion Loan or
any successor REO Loan.
"Mortgage Rate": With respect to (i) any Loan on or prior to its
Stated Maturity Date, the annualized rate at which interest is scheduled (in the
absence of a default) to accrue on such Loan from time to time in accordance
with the terms of the related Mortgage Note (as such may be modified at any time
following the Closing Date) and applicable law, (ii) any Loan after its Stated
Maturity Date, the annualized rate described in clause (i) of this definition
determined without regard to the passage of such Stated Maturity Date, and (iii)
any REO Loan, the annualized rate described in clause (i) or (ii) of this
definition, as applicable, determined as if the related Loan had remained
outstanding.
"Mortgaged Property": Individually and collectively, as the context
may require, each real property (together with all improvements and fixtures
thereon) subject to the lien of a Mortgage and constituting collateral for a
Loan. With respect to any Cross-Collateralized Mortgage Loan, as the context may
require, "Mortgaged Property" may mean, collectively, all the Mortgaged
Properties securing such Cross-Collateralized Mortgage Loan.
"Mortgagor": The obligor or obligors on a Mortgage Note, including
without limitation, any Person that has acquired the related Mortgaged Property
and assumed the obligations of the original obligor under the Mortgage Note.
"Net Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments during the related Collection Period, exceeds (b) the
amount of the Compensating Interest Payment remitted by the Master Servicer
pursuant to Section 3.19(e) on the Master Servicer Remittance Date related to
such Distribution Date.
"Net Assumption Application Fee": As defined in Section 3.08.
"Net Assumption Fee": As defined in Section 3.08.
"Net Cash Flow": With respect to any Mortgaged Property, the total
operating revenues derived from such Mortgaged Property, minus the total fixed
and variable operating expenses, capital expenditures such as reserves, tenant
improvements and leasing commissions, incurred in respect of such Mortgaged
Property (subject to adjustments for, among other things, (i) non cash items
such as depreciation and amortization, and (ii) debt service on loans secured by
the Mortgaged Property).
"Net Default Charges": With respect to any Serviced Loan or REO
Loan, the Default Charges referred to in clause sixth of Section 3.27(a) and
clause third of Section 3.27(c), which are payable to the Master Servicer as
Additional Master Servicing Compensation or the Special Servicer as Additional
Special Servicing Compensation.
"Net Investment Earnings": With respect to any Investment Account
for any Collection Period, the amount, if any, by which the aggregate of all
interest and other income realized during such Collection Period on funds held
in such Investment Account, exceeds the aggregate of all losses and investment
costs, if any, incurred during such Collection Period in connection with the
investment of such funds in accordance with Section 3.06.
"Net Investment Loss": With respect to any Investment Account for
any Collection Period, the amount by which the aggregate of all losses and
investment costs, if any, incurred during such Collection Period in connection
with the investment of funds held in such Investment Account in accordance with
Section 3.06, exceeds the aggregate of all interest and other income realized
during such Collection Period on such funds, but Net Investment Loss shall not
include any loss with respect to such investment that is incurred solely as a
result of the insolvency of the federally or state chartered depository
institution or trust company that holds such Investment Account so long as such
depository institution or trust company satisfied the qualifications set forth
in the definition of Eligible Account at the time such investment was made and
so long as such depository institution or trust company is not an Affiliate of
either the Master Servicer or the Special Servicer.
"Net Liquidation Proceeds": The excess, if any, of all Liquidation
Proceeds received with respect to any Specially Serviced Loan or REO Property,
over the amount of all Liquidation Expenses incurred with respect thereto and
all related Servicing Advances reimbursable therefrom.
"Net Modification Application Fee": As defined in Section 3.20(i).
"Net Modification Fee": As defined in Section 3.20(i).
"Net Mortgage Rate": With respect to any Loan or any related REO
Loan, as of any date of determination, a rate per annum equal to the related
Mortgage Rate then in effect minus the related Administrative Fee Rate, if
applicable. For purposes of calculating the Pass-Through Rate for each Class of
Certificates (other than the 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 Serviced Whole Loan, the
related Companion Loan Holder, to the extent of its interest), including any
lease renewed, modified or extended on behalf of the Trust, if the Trust has the
right to renegotiate the terms of such lease.
"Non-Investment Grade Sequential Pay Certificates": The Class L,
Class M, Class N, Class O, Class P, Class Q and Class S Certificates.
"Non-Partitioned Loans": Each Mortgage Loan, other than any Mortgage
Loan related to an A/B Whole Loan.
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class 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, Class S, Class V, Class R-I and Class R-II Certificate.
"Non-Serviced Companion Loan": Any of the Sawgrass Xxxxx Companion
Loans, the Arundel Xxxxx Xxxx Passu Companion Loans, the CVS Portfolio Louisiana
Pari Passu Companion Loan, the CVS Portfolio Texas Pari Passu Companion Loan and
the CVS - Gulfport 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 Servicing Agreement.
"Non-Serviced Loan Nonrecoverable Servicing Advance": Any Sawgrass
Xxxxx Nonrecoverable Servicing Advance, Arundel Xxxxx Nonrecoverable Servicing
Advance, CVS Portfolio Louisiana Nonrecoverable Servicing Advance, CVS Portfolio
Texas Nonrecoverable Servicing Advance or CVS - Gulfport Nonrecoverable
Servicing Advance, as applicable.
"Non-Serviced Loan Noteholder": Any of the Sawgrass Xxxxx
Noteholders, the Arundel Xxxxx Noteholders, the CVS Portfolio Louisiana
Noteholders, the CVS Portfolio Texas Noteholders or the CVS - Gulfport
Noteholders, as applicable.
"Non-Serviced Loan Servicing Agreement": Each of the Sawgrass Xxxxx
Servicing Agreement, the Arundel Xxxxx Servicing Agreement, the CVS Portfolio
Louisiana Servicing Agreement, the CVS Portfolio Texas Servicing Agreement and
the CVS - Gulfport Servicing Agreement.
"Non-Serviced Loan Special Servicer": With respect to any
Non-Serviced Mortgage Loan, the "special servicer" designated under the related
Non-Serviced Loan Servicing Agreement.
"Non-Serviced Loan Trustee": With respect to any Non-Serviced
Mortgage Loan, the "trustee" designated under the related Non-Serviced Loan
Servicing Agreement.
"Non-Serviced Mortgage Loan": Any of the Sawgrass Xxxxx Split
Mortgage Loan, the Arundel Xxxxx Xxxx Passu Mortgage Loan, the CVS Portfolio
Pari Passu Mortgage Loan, the CVS Portfolio Texas Pari Passu Mortgage Loan and
the CVS - Gulfport Pari Passu Mortgage Loan, as applicable.
"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 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 Loan Servicing Agreement.
"Non-Serviced Whole Loan": Any of the Sawgrass Xxxxx Whole Loan, the
Arundel Xxxxx Xxxx Passu Whole Loan, the CVS Portfolio Pari Passu Whole Loan,
the CVS Portfolio Texas Pari Passu Whole Loan and the CVS - Gulfport Pari Passu
Whole Loan, as applicable.
"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, the Trustee and the Certificate Administrator notice of such
determination and any such determination shall be conclusive and binding on the
Master Servicer, the Trustee and the Certificate Administrator.
"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 Sawgrass Xxxxx Nonrecoverable Servicing Advance, any Arundel Xxxxx
Nonrecoverable Servicing Advance, any CVS Portfolio Louisiana Nonrecoverable
Servicing Advance, any CVS Portfolio Texas Nonrecoverable Servicing Advance or
any CVS - Gulfport Nonrecoverable Servicing Advance (including interest thereon
calculated in accordance with the respective Non-Serviced Loan Servicing
Agreement). The determination as to the recoverability of any servicing advance
previously made or proposed to be made in respect of a Non-Serviced Mortgage
Loan shall be made by the related Non-Serviced Loan Master Servicer,
Non-Serviced Loan Special Servicer or the Non-Serviced Loan Trustee, as the case
may be, pursuant to the related Non-Serviced Loan Servicing Agreement. Any such
determination made by such Non-Serviced Loan Master Servicer, Non-Serviced Loan
Special Servicer or the Non-Serviced Loan Trustee, shall be conclusive and
binding on the Certificateholders.
"Note B": Any of the Sawgrass Xxxxx Note B-1, the Sawgrass Xxxxx
Note B-2, the Sawgrass Xxxxx Note B-3, the Xxxxx Xxxxxx Building Note B, the
Green Oak Village Place Note B and the West Hartford Portfolio Note B.
"Note B Holder": Any holder of a Note B.
"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 the Certificate Administrator or any
authorized officer of the Mortgage Loan Seller, as the case may be.
"Operating Advisor": With respect to any A/B Whole Loan, the advisor
(if any) elected pursuant to the related intercreditor agreement.
"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 Certificate
Administrator, the REMIC Administrator, the Master Servicer or the Special
Servicer), which written opinion is acceptable and delivered to the
addressee(s).
"Option Holder": As defined in Section 3.18(c).
"Option Period": As defined in Section 3.18(c).
"Option Price": As defined in Section 3.18(c).
"OTS": The Office of Thrift Supervision or any successor thereto.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"P&I Advance": As to any Serviced Loan or REO Loan, any advance made
by the Master Servicer or the Trustee pursuant to Section 4.03.
"Pari Passu Companion Loan": Any of the Sawgrass Xxxxx Xxxx Passu
Companion Loans, Arundel Xxxxx Xxxx Passu Companion Loans, CVS Portfolio
Louisiana Pari Passu Companion Loan, CVS Portfolio Texas Pari Passu Companion
Loan and CVS - Gulfport Pari Passu Companion Loan, as applicable.
"Pari Passu Mortgage Loan": Any of the Sawgrass Xxxxx Split Mortgage
Loan, Arundel Xxxxx Xxxx Passu Mortgage Loan, CVS Portfolio Louisiana Mortgage
Loan, CVS Portfolio Texas Mortgage Loan and CVS - Gulfport Pari Passu Mortgage
Loan, as applicable.
"Pari Passu Whole Loan": Any of the Sawgrass Xxxxx Whole Loan,
Arundel Xxxxx Xxxx Passu Whole Loan, CVS Portfolio Louisiana Pari Passu Whole
Loan, CVS Portfolio Texas Pari Passu Whole Loan and CVS - Gulfport Pari Passu
Whole Loan, as applicable.
"Pass-Through Rate": With respect to any Class of Sequential Pay
Certificates, the rate per annum specified as such in respect of such Class in
the Preliminary Statement hereto. With respect to the Class XW Certificates, for
any Distribution Date, the Class XW Pass-Through Rate.
"Past Grace Period Serviced Loan": With respect to any Master
Servicer Remittance Date, any Serviced Loan having any Monthly Payment remaining
unpaid past its Due Date and past any applicable grace period for such Monthly
Payment as of the Determination Date in the same calendar month.
"Payment Priority": With respect to any Class of Certificates (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, to the respective Classes of Senior Certificates;
second, to the Class A-M Certificates; third, to the Class A-J Certificates;
fourth, to the Class B Certificates; fifth, to the Class C Certificates; sixth,
to the Class D Certificates; seventh, to the Class E Certificates; eighth, to
the Class F Certificates; ninth, to the Class G Certificates; tenth, to the
Class H Certificates; eleventh, to the Class J Certificates; twelfth, to the
Class K Certificates; thirteenth, to the Class L Certificates; fourteenth, to
the Class M Certificates; fifteenth, to the Class N Certificates; sixteenth, to
the Class O Certificates; seventeenth, to the Class P Certificates; eighteenth,
to the Class Q Certificates; nineteenth, to the Class S Certificates; and, last,
to the respective Classes of REMIC Residual Certificates.
"Percentage Interest": With respect to any REMIC II 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 XW 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 Party": As defined in Section 11.12.
"Performing Serviced Loan": As of any date of determination, any
Serviced Loan as to which no Servicing Transfer Event then exists.
"Permitted Investments": Any one or more of the following
obligations:
(a) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or any
agency or instrumentality thereof, provided such obligations are backed by
the full faith and credit of the United States;
(b) repurchase obligations with respect to any security described in
clause (a) of this definition, provided that the long-term unsecured debt
obligations of the party agreeing to repurchase such obligations are rated
"AA+" by Fitch 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") and;
(f) the Xxxxx Fargo Prime Investment Money Market Fund so long as it
is rated by each Rating Agency in its highest money market fund ratings
category (or, if not rated by 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 and the Certificate Administrator;
provided that no investment described hereunder shall evidence either the right
to receive (a) only interest with respect to such investment or (b) a yield to
maturity greater than 120% of the yield to maturity at par of the underlying
obligations; and provided, further, no investment described hereunder may be
purchased at a price greater than par if such investment may be prepaid or
called at a price less than its purchase price prior to stated maturity; and
provided, further, each investment described hereunder shall, by its terms, have
a predetermined fixed amount of principal due at maturity (that cannot vary or
change) and either a fixed interest rate or variable interest rate tied to a
single interest rate index plus a single fixed spread; and provided, further,
each investment described hereunder shall be a "cash flow investment", as
defined in the REMIC Provisions; and provided, further, no investment described
hereunder shall have a maturity in excess of one year; and provided, further, no
investment described hereunder shall be liquidated prior to its maturity date;
and provided, further, no investment described hereunder may have an "r"
highlighter or other comparable qualifier attached to its rating.
"Permitted Mezzanine Loan Holder": With respect to the Mezzanine
Loans, any "qualified transferee" with respect to which each Rating Agency has
confirmed in writing that the holding of the related Mezzanine Loan by such
Person would not cause a qualification, downgrade or withdrawal of any of such
Rating Agency's then-current ratings on the Certificates or Companion Loan
Securities or that otherwise meets the qualifications set forth in the related
Mezzanine Intercreditor Agreement to be a "qualified transferee".
"Permitted Transferee": Any Transferee of a REMIC Residual
Certificate other than any of a Plan or a Person acting on behalf of or using
the assets of a Plan, a Disqualified Organization, a Disqualified Non-U.S.
Person, an entity treated as a U.S. partnership for federal income tax purposes
if any of its direct or indirect beneficial owners (other than through a U.S.
corporation) is (or is permitted to be under the related partnership agreement)
a Disqualified Non-U.S. Person or a U.S. Person with respect to whom income on a
REMIC Residual Certificate is attributable to a foreign permanent establishment
or fixed base, within the meaning of an applicable income tax treaty, of such
Person or any other U.S. Person or any nominee, agent or middleman of any of the
above.
"Person": Any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization, limited liability company or government or any agency or
political subdivision thereof.
"Phase I Environmental Assessment": A "Phase I assessment" or, in
the case of any Serviced Loan having an initial principal balance under
$1,000,000, a transaction screen, as described in, and meeting the criteria of,
the American Society of Testing Materials Standard Sections 1527-99 or any
successor thereto published by the American Society of Testing Materials.
"Placement Agent": Banc of America Securities LLC.
"Plan": As defined in Section 5.02(c).
"Pool REO Account": A segregated custodial account or accounts
created and maintained by the Special Servicer pursuant to Section 3.16(b) on
behalf of the Trustee in trust for the Certificateholders, which shall be
entitled "Centerline Servicing 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 2007-5, REO Account". Any such account or accounts shall be an Eligible
Account.
"Post CAP A/B Whole Loan": Any A/B Whole Loan following the
occurrence and during the continuance of a related Control Appraisal Period.
"Prepayment Assumption": The assumption that no Mortgage Loan (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 and the REMIC II Regular Certificates 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 (which includes the Certificate Administrator Fees), on the
amount of such Principal Prepayment during the period commencing on the date as
of which such Principal Prepayment was applied to such Serviced Loan and ending
on the last day of such calendar month, inclusive.
"Prepayment Premium": Any premium, penalty or fee paid or payable,
as the context requires, by a Mortgagor in connection with a Principal
Prepayment on, or other early collection of principal of, a Loan or any
successor REO Loan.
"Primary Collateral": The Mortgaged Property directly securing a
Cross-Collateralized Mortgage Loan excluding, however, any Mortgaged Property as
to which the related lien may only be foreclosed upon solely because of the
cross-collateralization of such Mortgage Loans.
"Primary Servicing Fee": With respect to each Mortgage Loan that is
subject to a Sub-Servicing Agreement as of the Closing Date, the monthly fee
payable to the Sub-Servicer by the Master Servicer from the Master Servicing
Fee, which monthly fee accrues at the Primary Servicing Fee Rate.
"Primary Servicing Fee Rate": With respect to each Mortgage Loan
that is subject to a Sub-Servicing Agreement as of the Closing Date, the rate
per annum specified as such in the Mortgage Loan Schedule.
"Primary Servicing Office": With respect to the Master Servicer, the
office thereof primarily responsible for performing its respective duties under
this Agreement, initially located in Charlotte, North Carolina, and, with
respect to the Special Servicer, the office thereof primarily responsible for
performing its respective duties under this Agreement, initially located in
Kansas.
"Principal Distribution Amount": With respect to any Distribution
Date and in respect of any Mortgage Loan, the aggregate of the Current Principal
Distribution Amount for such Distribution Date and, if such Distribution Date is
subsequent to the initial Distribution Date, the excess, if any, of the
Principal Distribution Amount for the preceding Distribution Date, over the
aggregate distributions of principal made on the Sequential Pay Certificates 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
December 20, 2007, relating to the Class X-0, Xxxxx X-0, Class A-3, Class A-SB,
Class A-4, Class A-1A, Class A-M and Class A-J Certificates, that is a
supplement to the Base Prospectus.
"Purchase Option": As defined in Section 3.18(c).
"Purchase Price": With respect to any Mortgage Loan, a price equal
to the unpaid principal balance of the Mortgage Loan as of the date of purchase,
together with (a) all accrued and unpaid interest (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 (which includes the Certificate
Administrator 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
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 (which
includes the Certificate Administrator 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 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 and the Certificate Administrator 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 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 February 2051.
"Rating Agency": Each of Fitch and S&P, or their successors in
interest, and, if applicable, any rating agency rating the Companion Loan
Securities.
"Realized Loss": With respect to each Defaulted Serviced Loan as to
which a Final Recovery Determination has been made, or with respect to any
related REO Loan as to which a Final Recovery Determination has been made as to
the related REO Property, an amount (not less than zero) equal to (i) the unpaid
principal balance of such Serviced Loan or REO Loan, as the case may be, as of
the Due Date related to the Collection Period in which the Final Recovery
Determination was made, plus (ii) all accrued but unpaid interest on such
Serviced Loan or REO Loan, as the case may be, at the related Mortgage Rate to
but not including the Due Date related to the Collection Period in which the
Final Recovery Determination was made, plus (iii) any related unreimbursed
Servicing Advances as of the commencement of the Collection Period in which the
Final Recovery Determination was made, together with any new related Servicing
Advances made during such Collection Period, minus (iv) all payments and
proceeds, if any, received in respect of such Collection Period related to the
Serviced Loan or REO Loan, as the case may be, during the Collection Period in
which such Final Recovery Determination was made (net of any related Liquidation
Expenses paid therefrom).
With respect to any Serviced Loan as to which any portion of the
outstanding principal or accrued interest owed thereunder was forgiven in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, waiver or amendment of such Serviced Loan granted
or agreed to by the Master Servicer or Special Servicer pursuant to Section
3.20, the amount of such principal or past due interest (other than any Default
Interest) so forgiven.
With respect to any Loan as to which the Mortgage Rate thereon has
been permanently reduced and not recaptured for any period in connection with a
bankruptcy or similar proceeding involving the related Mortgagor or a
modification, waiver or amendment of such Loan granted or agreed to by the
Master Servicer or Special Servicer pursuant to Section 3.20, the amount of the
consequent reduction, if any, in the interest portion of each successive Monthly
Payment due thereon. Each such Realized Loss shall be deemed to have been
incurred on the Due Date for each affected Monthly Payment.
With respect to (i) any Pari Passu Whole Loan, Realized Losses shall
be deemed allocated pro rata between the Mortgage Loan and the related Companion
Loan in accordance with the related Intercreditor Agreement and the portion
allocable to the Mortgage Loan shall be further allocated to the Certificates as
provided in this Agreement, and (ii) any A/B Whole Loan, Realized Losses shall
be deemed allocated first to the Companion Loan and then to the related Mortgage
Loan and the portion allocable to the Mortgage Loan shall be further allocated
to the Certificates as provided in this Agreement.
With respect to any Non-Serviced Mortgage Loan, the term "Realized
Loss" shall include any comparable determination made by the related
Non-Serviced Loan Master Servicer or Non-Serviced Loan Special Servicer, as
applicable, under the Non-Serviced Loan Servicing Agreement with respect to such
Non-Serviced Mortgage Loan or any related REO Property.
"Record Date": With respect to each Class of Certificates, for any
Distribution Date, the last Business Day of the calendar month immediately
preceding the month in which such Distribution Date occurs.
"Registered Certificates": Any Certificate that has been registered
under the Securities Act.
"Regulation AB": Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from
time to time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506 - 1,631 (Jan. 7, 2005))
or by the staff of the Commission, or as may be provided by the Commission or
its staff from time to time.
"Regulation AB Companion Loan Securitization": As defined in
Section 11.15(a).
"Regulation S": Regulation S under the Securities Act.
"Regulation S Certificate": A certificate in the form of Exhibit N
attached hereto.
"Regulation S Global Certificate": A global certificate representing
interests in a Class of Certificates as provided in Section 5.03(g), initially
sold in offshore transactions in reliance on Regulation S in fully registered
form without interest coupons.
"Reimbursement Rate": The rate per annum applicable to the accrual
of Advance Interest, which rate per annum shall be equal to the "prime rate" as
published in the "Money Rates" section of The Wall Street Journal, as such
"prime rate" may change from time to time. If The Wall Street Journal ceases to
publish such "prime rate", then the Trustee, in its sole discretion, shall
select an equivalent publication that publishes such "prime rate"; and if such
"prime rate" is no longer generally published or is limited, regulated or
administered by a governmental or quasi governmental body, then the Trustee
shall select a comparable interest rate index. In either case, such selection
shall be made by the Trustee in its sole discretion and the Trustee shall notify
the Master Servicer and the Special Servicer in writing of its selection.
"Release Date": The 40th day after the later of (i) the commencement
of the offering of the Certificates and (ii) the Closing Date.
"Relevant Servicing Criteria": The Servicing Criteria applicable to
the various parties, as set forth on Schedule VIII attached hereto. For the
avoidance of doubt, multiple parties can have responsibility for the same
Relevant Servicing Criteria. With respect to a Servicing Function Participant
engaged by the Trustee, the Certificate Administrator, 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, the Certificate Administrator or the Trustee.
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code.
"REMIC Administrator": LaSalle Bank National Association, 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 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 Agreement; (v) the Interest Deposit Amount; and (vi) 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
Certificate Administrator pursuant to Section 3.04, which shall be entitled
"LaSalle Bank National Association, as Certificate Administrator on behalf of
Xxxxx Fargo Bank, N.A., as Trustee, in trust for Holders of Banc of America
Commercial Mortgage Inc., Commercial Mortgage Pass-Through Certificates, Series
2007-5, 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 for the related Distribution Date.
"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 V
Certificate or a Class R-I Certificate.
"REMIC II Distribution Account": The segregated account or accounts
created and maintained as a separate trust account or accounts by the
Certificate Administrator pursuant to Section 3.04, which shall be entitled
"LaSalle Bank National Association, as Certificate Administrator on behalf of
Xxxxx Fargo Bank, N.A., as Trustee, in trust for Holders of Banc of America
Commercial Mortgage Inc., Commercial Mortgage Pass-Through Certificates, Series
2007-5, REMIC II Distribution Account" and which account shall be an Eligible
Account and a sub-account of the Distribution Account.
"REMIC II Regular Certificate": Any REMIC II Certificate, other than
a Class R-II Certificate.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and temporary and final Treasury regulations (or proposed
regulations that would apply by reason of their proposed effective date to the
extent not inconsistent with temporary or final regulations) and any rulings
promulgated thereunder, as the foregoing may be in effect from time to time.
"REMIC Residual Certificate": Any Class R-I or Class R-II
Certificate.
"Rents from Real Property": With respect to any REO Property (other
than any REO Property to the extent related to a Non-Serviced Mortgage Loan),
gross income of the character described in Section 856(d) of the Code, which
income, subject to the terms and conditions of that Section of the Code in its
present form, does not include:
(a) except as provided in Section 856(d)(4) or (6) of the Code, any
amount received or accrued, directly or indirectly, with respect to such
REO Property, if the determination of such amount depends in whole or in
part on the income or profits derived by any Person from such property
(unless such amount is a fixed percentage or percentages of receipts or
sales and otherwise constitutes Rents from Real Property);
(b) any amount received or accrued, directly or indirectly, from any
Person if the Trust Fund owns directly or indirectly (including by
attribution) a ten percent or greater interest in such Person determined
in accordance with Sections 856(d)(2)(B) and (d)(5) of the Code;
(c) any amount received or accrued, directly or indirectly, with
respect to such REO Property if any Person Directly Operates such REO
Property;
(d) any amount charged for services that are not customarily
furnished in connection with the rental of property to tenants in
buildings of a similar class in the same geographic market as such REO
Property within the meaning of Treasury Regulations Section 1.856-4(b)(1)
(whether or not such charges are separately stated); and
(e) rent attributable to personal property unless such personal
property is leased under, or in connection with, the lease of such REO
Property and, for any taxable year of the Trust Fund, such rent is no
greater than 15 percent of the total rent received or accrued under, or in
connection with, the lease.
"REO Account": The Pool REO Account and/or a Serviced Whole Loan REO
Account, as applicable.
"REO Acquisition": The acquisition of a REO Property for federal
income tax purposes pursuant to Treasury Regulations Section 1.856-6.
"REO Disposition": The sale or other disposition of the REO Property
pursuant to Section 3.18.
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The mortgage loan(s) deemed for purposes hereof to be
outstanding with respect to each REO Property acquired in respect of any
Serviced Loan or, with respect to a Non-Serviced Mortgage Loan, which is
serviced under the related Non-Serviced Loan Servicing Agreement, in respect of
the Trust's interest in the "REO Property" acquired under such Non-Serviced Loan
Servicing Agreement. 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 Sawgrass Xxxxx 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 Sawgrass Xxxxx Intercreditor Agreement. If the Loans comprising
Arundel Xxxxx Xxxx Passu Whole Loan become REO Loans, amounts received by the
Trust with respect to such REO Loans shall be applied to amounts due and owing
in respect of such REO Loans as provided in Section 1(b) of the Arundel Xxxxx
Intercreditor Agreement. If the Loans comprising Xxxxx Xxxxxx Building 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 Xxxxx Xxxxxx Building Intercreditor Agreement. If
the Loans comprising Green Oak Village Place 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 Green Oak Village Place Intercreditor Agreement. If the Loans comprising
West Hartford Portfolio 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 West Hartford
Portfolio Intercreditor Agreement. If the Loans comprising CVS Portfolio
Louisiana 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 CVS Portfolio
Louisiana Intercreditor Agreement. If the Loans comprising CVS Portfolio Texas
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 CVS Portfolio Texas
Intercreditor Agreement. If the Loans comprising CVS - Gulfport 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 CVS - Gulfport 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 any of the Non-Serviced Mortgage
Loans becomes an "REO Loan" as defined under the related Non-Serviced Loan
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 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 a Non-Serviced Mortgage Loan, the beneficial interest of
the Trust Fund in the related Mortgaged Property if it is acquired by the
Non-Serviced Loan Special Servicer, for the benefit of the Certificateholders
and the Non-Serviced Loan 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), Xxxxx'x
("A2" or better), S&P ("A" or better) and A.M. Best Company ("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 Company shall be
disregarded and shall not be applicable as one of the two required ratings
except with respect to a fidelity bond or errors and omissions insurance
maintained by a Sub-Servicer and then only to the extent in force as of the
Closing Date. Notwithstanding the preceding sentence, an insurance carrier with
lower or fewer claims-paying ability ratings shall be deemed to have the
"Required Claims-Paying Ratings" if the applicable Rating Agency has confirmed
in writing that such insurance carrier shall not result, in and of itself, in a
downgrading, withdrawal or qualification (if applicable) of the then current
rating assigned by such Rating Agency to any Class of Certificates or Companion
Loan Securities unless, with respect to policies maintained by borrowers, a
higher claims-paying ability rating is required under any of the loan documents.
"Reserve Account": The account or accounts created and maintained
pursuant to Section 3.03(d).
"Reserve Funds": With respect to any Loan, any amounts delivered by
the related Mortgagor (and not previously disbursed) to be held in escrow by or
on behalf of the mortgagee representing reserves for principal and interest
payments, repairs, replacements, capital improvements (including, without
limitation, tenant improvements and leasing commissions), and/or environmental
testing and remediation with respect to the related Mortgaged Property.
"Resolution Extension Period": This term shall mean:
(i) for purposes of remediating a Material Breach with respect
to any Mortgage Loan, the 90-day period following the end of the
applicable Initial Resolution Period;
(ii) for purposes of remediating a Material Document Defect
with respect to any Mortgage Loan that is not a Specially Serviced
Loan at the commencement of, and does not become a Specially
Serviced Loan during, the applicable Initial Resolution Period, the
period commencing at the end of the applicable Initial Resolution
Period and ending on, and including, the earlier of (i) the 90th day
following the end of such Initial Resolution Period and (ii) the
45th day following receipt by the 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 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 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 Mortgage Loan Seller shall have an additional 90
days to cure such Material Document Defect or Material Breach, provided that the
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 (i) 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 and (ii) the Certificate Administrator,
any officer assigned to the Global Securities and Trust Services group, any vice
president, any assistant vice president, any assistant secretary, any assistant
treasurer, or any other officer of the Certificate Administrator customarily
performing functions similar to those performed by any of the above designated
officers to whom a particular matter is referred by the Certificate
Administrator 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 or the Certificate Administrator), 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 Certificate Administrator, 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).
"Sawgrass Xxxxx Companion Loans": Collectively, the Sawgrass Xxxxx
Xxxx Passu Companion Loans and the Sawgrass Xxxxx Subordinate Companion Loans.
"Sawgrass Xxxxx Controlling Holder": The meaning assigned to
"Controlling Holder" in the Sawgrass Xxxxx Intercreditor Agreement. The initial
Sawgrass Xxxxx Controlling Holder shall be set forth on Schedule VII hereto.
"Sawgrass Xxxxx Indemnified Parties": As defined in Section
6.03(b).
"Sawgrass Xxxxx Intercreditor Agreement": The Intercreditor and
Servicing Agreement dated as of August 22, 2007 by and among the Sawgrass Xxxxx
Note A-1 Holder, the Sawgrass Xxxxx Note A-2 Holder, the Sawgrass Xxxxx Note A-3
Holder, the Sawgrass Xxxxx Note A-4 Holder, the Sawgrass Xxxxx Note A-5 Holder,
the Sawgrass Xxxxx Note B-1 Holder, the Sawgrass Xxxxx Note B-2 Holder and the
Sawgrass Xxxxx Note B-3 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.
"Sawgrass Xxxxx Master Servicer": The master servicer under the
Sawgrass Xxxxx Servicing Agreement, which as of the Closing Date is Xxxxx Fargo
Bank, N.A.
"Sawgrass Xxxxx Mortgaged Property": The Mortgaged Property that
secures the Sawgrass Xxxxx Whole Loan.
"Sawgrass Xxxxx Note A-1": With respect to the Sawgrass Xxxxx Whole
Loan, the related Mortgage Note that is not included in the Trust Fund and which
is pari passu in right of payment to the Sawgrass Xxxxx Split Mortgage Loan and
the other Sawgrass Xxxxx Xxxx Passu Companion Loans as set forth in the Sawgrass
Xxxxx Intercreditor Agreement.
"Sawgrass Xxxxx Note A-1 Holder": The holder of the Sawgrass Xxxxx
Note A-1, as of the Closing Date, the trust established in connection with the
issuance of the X.X. Xxxxxx Chase Commercial Mortgage Securities Trust
2007-LDP12, Commercial Mortgage Pass-Through Certificates, Series 2007-LDP12.
"Sawgrass Xxxxx Note A-2": With respect to the Sawgrass Xxxxx Whole
Loan, the related Mortgage Note that is not included in the Trust Fund and which
is pari passu in right of payment to the Sawgrass Xxxxx Split Mortgage Loan and
the other Sawgrass Xxxxx Xxxx Passu Companion Loans as set forth in the Sawgrass
Xxxxx Intercreditor Agreement.
"Sawgrass Xxxxx Note A-2 Holder": The holder of the Sawgrass Xxxxx
Note A-2, initially Nomura Credit & Capital, Inc.
"Sawgrass Xxxxx Note A-3": With respect to the Sawgrass Xxxxx Whole
Loan, the related Mortgage Note that is not included in the Trust Fund and which
is pari passu in right of payment to the Sawgrass Xxxxx Split Mortgage Loan and
the other Sawgrass Xxxxx Xxxx Passu Companion Loans as set forth in the Sawgrass
Xxxxx Intercreditor Agreement.
"Sawgrass Xxxxx Note A-3 Holder": The holder of the Sawgrass Xxxxx
Note A-3, as of the Closing Date, the trust established in connection with the
issuance of the Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-4.
"Sawgrass Xxxxx Note A-4": With respect to the Sawgrass Xxxxx Whole
Loan, the related Mortgage Note that is not included in the Trust Fund and which
is pari passu in right of payment to the Sawgrass Xxxxx Split Mortgage Loan and
the other Sawgrass Xxxxx Xxxx Passu Companion Loans as set forth in the Sawgrass
Xxxxx Intercreditor Agreement.
"Sawgrass Xxxxx Note A-4 Holder": The holder of the Sawgrass Xxxxx
Note A-4, as of the Closing Date, the trust established in connection with the
issuance of the X.X. Xxxxxx Chase Commercial Mortgage Securities Trust
2007-CIBC20, Commercial Mortgage Pass-Through Certificates, Series 2007-CIBC20.
"Sawgrass Xxxxx Note A-5": With respect to the Sawgrass Xxxxx Whole
Loan, the Mortgage Note related to Sawgrass Xxxxx Split Mortgage Loan that is
included in the Trust Fund, which is pari passu in right of payment to the
Sawgrass Xxxxx Xxxx Passu Companion Loans as set forth in the Sawgrass Xxxxx
Intercreditor Agreement.
"Sawgrass Xxxxx Note A-5 Holder": The holder of the Sawgrass Xxxxx
Note A-5, initially Bank of America, N.A.
"Sawgrass Xxxxx Note B-1": With respect to the Sawgrass Xxxxx Whole
Loan, the Mortgage Note that is not included in the Trust Fund, which is: (A)
subordinated in right of payment to the Sawgrass Xxxxx Split Mortgage Loan and
the other Sawgrass Xxxxx Xxxx Passu Companion Loans and (B) is pari passu in
right of payment to the other Sawgrass Xxxxx Subordinate Companion Loans as set
forth in the Sawgrass Xxxxx Intercreditor Agreement.
"Sawgrass Xxxxx Note B-1 Holder": The holder of the Sawgrass Xxxxx
Note B-1, initially JPMorgan Chase Bank, N.A.
"Sawgrass Xxxxx Note B-2": With respect to the Sawgrass Xxxxx Whole
Loan, the Mortgage Note that is not included in the Trust Fund, which is: (A)
subordinated in right of payment to the Sawgrass Xxxxx Split Mortgage Loan and
the other Sawgrass Xxxxx Xxxx Passu Companion Loans and (B) is pari passu in
right of payment to the other Sawgrass Xxxxx Subordinate Companion Loans as set
forth in the Sawgrass Xxxxx Intercreditor Agreement.
"Sawgrass Xxxxx Note B-2 Holder": The holder of the Sawgrass Xxxxx
Note B-2, initially Bank of America, N.A.
"Sawgrass Xxxxx Note B-3": With respect to the Sawgrass Xxxxx Whole
Loan, the Mortgage Note that is not included in the Trust Fund, which is: (A)
subordinated in right of payment to the Sawgrass Xxxxx Split Mortgage Loan and
the other Sawgrass Xxxxx Xxxx Passu Companion Loans and (B) is pari passu in
right of payment to the other Sawgrass Xxxxx Subordinate Companion Loans as set
forth in the Sawgrass Xxxxx Intercreditor Agreement.
"Sawgrass Xxxxx Note B-3 Holder": The holder of the Sawgrass Xxxxx
Note B-3, initially Nomura Credit & Capital, Inc.
"Sawgrass Xxxxx Noteholders": Collectively, the holders of the
Sawgrass Xxxxx Note A-1, the Sawgrass Xxxxx Note A-2, the Sawgrass Xxxxx Note
A-3, the Sawgrass Xxxxx Note A-4, the Sawgrass Xxxxx Note A-5, the Sawgrass
Xxxxx Note B-1, the Sawgrass Xxxxx Note B-2 and the Sawgrass Xxxxx Note B-3.
"Sawgrass Xxxxx Nonrecoverable Servicing Advance": With respect
to the Sawgrass Xxxxx Split Mortgage Loan, a "Nonrecoverable Servicing
Advance" as defined in the Sawgrass Xxxxx Servicing Agreement.
"Sawgrass Xxxxx Xxxx Passu Companion Loan Holders": The holders
of the Sawgrass Xxxxx Xxxx Passu Companion Loans.
"Sawgrass Xxxxx Xxxx Passu Companion Loans": The loans evidenced by
the Sawgrass Xxxxx Note A-1, the Sawgrass Xxxxx Note A-2, the Sawgrass Xxxxx
Note A-3 and the Sawgrass Xxxxx Note A-4.
"Sawgrass Xxxxx Servicing Agreement": That certain pooling and
servicing agreement dated as of August 1, 2007 among X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Corp., as depositor, the Sawgrass Xxxxx Master
Servicer, as master servicer, the Sawgrass Xxxxx Special Servicer, as special
servicer, and the Sawgrass Xxxxx Trustee, as trustee and REMIC administrator,
which agreement relates to the X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Trust 2007-LDP12.
"Sawgrass Xxxxx Special Servicer": The special servicer under
the Sawgrass Xxxxx Servicing Agreement, which as of the Closing Date is X.X.
Xxxxxx Company, Inc.
"Sawgrass Xxxxx Split Mortgage Loan": The Mortgage Loan
identified as Loan No. 3407000 in the Mortgage Loan Schedule, which, together
with the Sawgrass Xxxxx Companion Loans, is secured by a Mortgage on the
related Mortgaged Property.
"Sawgrass Xxxxx Subordinate Companion Loan Holders": The holders
of the Sawgrass Xxxxx Subordinate Companion Loans.
"Sawgrass Xxxxx Subordinate Companion Loans": The loans evidenced by
the Sawgrass Xxxxx Note B-1, the Sawgrass Xxxxx Note B-2 and the Sawgrass Xxxxx
Note B-3.
"Sawgrass Xxxxx Trustee": The trustee under the Sawgrass Xxxxx
Servicing Agreement, which as of the Closing Date is LaSalle Bank National
Association.
"Sawgrass Xxxxx Whole Loan": The Sawgrass Xxxxx Split Mortgage Loan,
collectively, with the Sawgrass Xxxxx Xxxx Passu Companion Loans and the
Sawgrass Xxxxx Subordinate Companion Loans. References herein to Sawgrass Xxxxx
Whole Loan shall be construed to refer to the aggregate indebtedness under the
Sawgrass Xxxxx Note A-1, Sawgrass Xxxxx Note X-0, Xxxxxxxx Xxxxx Xxxx X-0,
Sawgrass Xxxxx Note X-0, Xxxxxxxx Xxxxx Xxxx X-0, Sawgrass Xxxxx Note X-0,
Xxxxxxxx Xxxxx Xxxx X-0 and Sawgrass Xxxxx Note B-3.
"Sawgrass Xxxxx Whole Loan Purchase Option": As defined in
Section 3.18(l).
"Sawgrass Xxxxx Whole Loan Purchase Option Holder": As defined in
Section 3.18(l).
"Securities Act": The Securities Act of 1933, as amended, and the
rules and regulations thereunder.
"Securitized Companion Loan": Any of the Sawgrass Xxxxx Xxxx Passu
Companion Loans, the Arundel Xxxxx Xxxx Passu Companion Loans, the CVS Portfolio
Louisiana Pari Passu Companion Loan, the CVS Portfolio Texas Pari Passu
Companion Loan and/or the CVS - Gulfport Pari Passu Companion Loan, if and for
so long as each such Pari Passu Companion Loan is included in a Regulation AB
Companion Loan Securitization.
"Securitized Companion Loan Servicing Agreement": Any pooling and
servicing agreement or other agreement that creates a trust fund whose assets
include a Securitized Companion Loan.
"Securitized Companion Loan Securitization": Any securitization
whose assets include a Securitized Companion Loan.
"Security Agreement": With respect to any Loan, any security
agreement, chattel mortgage or similar document or instrument, whether contained
in the related Mortgage or executed separately, creating in favor of the holder
of such Mortgage a security interest in the personal property constituting
security for repayment of such Loan.
"Senior Certificate": Any Class A-1, Class X-0, Xxxxx X-0, Class
A-SB, 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-SB, Class A-4 and Class A-1A Certificates
outstanding immediately prior to such Distribution Date exceeds the sum of (a)
the aggregate Stated Principal Balance of the Mortgage Pool that will be
outstanding immediately following such Distribution Date, plus (b) the lesser of
(i) the Principal Distribution Amount for such Distribution Date and (ii) the
portion of the Available Distribution Amount for such Distribution Date that
will remain after the distributions of interest to be made on the Class X-0,
Xxxxx X-0, Class A-3, Class A-SB, Class A-4 and Class A-1A Certificates on such
Distribution Date have been so made.
"Sequential Pay Certificate": Any Class A Certificate, Class B
Certificate, Class C Certificate, Class D Certificate, Class E Certificate,
Class F Certificate, Class G Certificate, Class H Certificate, Class J
Certificate, Class K Certificate, Class L Certificate, Class M Certificate,
Class N Certificate, Class O Certificate, Class P Certificate, Class Q
Certificate or Class S Certificate.
"Serviced Loan": Any Mortgage Loan (other than the Sawgrass Xxxxx
Split Mortgage Loan, the Arundel Xxxxx Xxxx Passu Mortgage Loan, the CVS
Portfolio Louisiana Pari Passu Mortgage Loan, the CVS Portfolio Texas Pari Passu
Mortgage Loan or the CVS - Gulfport Pari Passu Mortgage Loan) or Serviced Whole
Loan.
"Serviced Whole Loan": Any Whole Loan (other than the Sawgrass Xxxxx
Whole Loan, the Arundel Xxxxx Xxxx Passu Whole Loan, the CVS Portfolio Louisiana
Pari Passu Whole Loan, the CVS Portfolio Texas Pari Passu Whole Loan or the CVS
- Gulfport Pari Passu Whole Loan).
"Serviced Whole Loan Custodial Account": With respect to the
Serviced Whole Loans, the segregated account or accounts created and maintained
by the Master Servicer pursuant to Section 3.04(e) on behalf of: (i) the Xxxxx
Xxxxxx Building Noteholders, which shall be entitled "Bank of America, National
Association, as Master Servicer, in trust for the Xxxxx Xxxxxx Building
Noteholders, as their interests may appear"; (ii) the Green Oak Village Place
Noteholders, which shall be entitled "Bank of America, National Association, as
Master Servicer, in trust for the Green Oak Village Place Noteholders, as their
interests may appear"; and (iii) the West Hartford Portfolio Noteholders, which
shall be entitled "Bank of America, National Association, as Master Servicer, in
trust for the West Hartford Portfolio Noteholders, as their interests may
appear", as applicable. Any such account shall at all times be an Eligible
Account.
"Serviced Whole Loan Remittance Amount": With respect to any Master
Servicer Remittance Date and any Serviced Whole Loan, an amount equal to (a) all
amounts on deposit in the related Serviced Whole Loan Custodial Account as of
the commencement of business on such Master Servicer Remittance Date, net of (b)
any portion of the amounts described in clause (a) of this definition that
represents one or more of the following: (i) collected Monthly Payments that are
due on a Due Date following the end of the related Collection Period, (ii) any
unscheduled payments of principal (including, without limitation, Principal
Prepayments, and interest, Liquidation Proceeds and Insurance Proceeds received
after the end of the related Collection Period), (iii) any Prepayment Premiums
received after the end of the related Collection Period, (iv) any amounts
payable or reimbursable to any Person from the related Serviced Whole Loan
Custodial Account pursuant to any of clauses (ii) through (xvii) of Section
3.05(f), (v) any Excess Liquidation Proceeds that are unrelated to such Serviced
Whole Loan, and (vi) any amounts deposited into the related Serviced Whole Loan
Custodial Account in error, provided that, with respect to the Master Servicer
Remittance Date that occurs in the same calendar month as the Final Distribution
Date, the Serviced Whole Loan Remittance Amount will be calculated without
regard to clauses (b)(i), (b)(ii) and (b)(iii) of this definition.
"Serviced Whole Loan REO Account": As defined in Section 3.16(b).
"Servicer Reports": Each of the: (i) CMSA Delinquent Loan Status
Report, (ii) CMSA REO Status Report, (iii) CMSA Historical Loan Modification and
Corrected Mortgage Loan Report, (iv) CMSA Comparative Financial Status Report,
(v) CMSA Servicer Watch List Report, (vi) CMSA NOI Adjustment Worksheet, (vii)
CMSA Operating Statement Analysis Report, (viii) CMSA Loan Level Reserve-LOC
Report, (ix) CMSA Loan Periodic Update File, (x) CMSA Property File, (xi) CMSA
Financial File and (xii) CMSA Advance Recovery Report.
"Service(s)(ing)": In accordance with Regulation AB, the act of
servicing and administering the Mortgage Loans or any other assets of the Trust
by an entity that meets the definition of "servicer" set forth in Item 1101 of
Regulation AB and is referenced in the disclosure requirements set forth in Item
1108 of Regulation AB. For the avoidance of doubt, any uncapitalized occurrence
of this term shall have the meaning commonly understood by participants in the
commercial mortgage-backed securities market.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03(a).
"Servicing Advances": Subject to Section 3.19(d) and with respect to
any Serviced Loan, all customary, reasonable and necessary "out-of-pocket" costs
and expenses incurred or to be incurred, as the context requires, by the Master
Servicer or, with respect to the Specially Serviced Loans, by the Master
Servicer at the direction of the Special Servicer or by the Special Servicer
(or, if applicable, the Trustee) in connection with the servicing of a Serviced
Loan after a default, delinquency or other unanticipated event, or in connection
with the administration of any REO Property, including, but not limited to, the
cost of (a) compliance with the obligations of the Master Servicer set forth in
Section 3.03(c) and Section 3.09, (b) the preservation, insurance, restoration,
protection and management of a Mortgaged Property, (c) obtaining any Liquidation
Proceeds or Insurance Proceeds in respect of any Serviced Loan or REO Property,
(d) any enforcement or judicial proceedings with respect to a Mortgaged
Property, including, without limitation, foreclosures, and (e) the operation,
management, maintenance and liquidation of any REO Property; provided that
notwithstanding anything herein to the contrary, "Servicing Advances" shall not
include allocable overhead of the Master Servicer or the Special Servicer (or
the Trustee, if applicable), such as costs for office space, office equipment,
supplies and related expenses, employee salaries and related expenses and
similar internal costs and expenses, or costs incurred by either such party in
connection with its purchase of any Serviced Loan or REO Property pursuant to
any provision of this Agreement. All Emergency Advances made by the Master
Servicer at the direction of the Special Servicer hereunder shall be considered
"Servicing Advances" for the purposes hereof.
"Servicing Criteria": The criteria set forth in paragraph (d) of
Item 1122 of Regulation AB as such may be amended from time to time.
"Servicing Fees": With respect to each Serviced Loan and REO
Loan, the Master Servicing Fee and the Special Servicing Fee.
"Servicing File": Any documents (other than documents required to be
part of the related Mortgage File), including, without limitation, the related
Phase I Environmental Site Assessment and any related environmental insurance or
endorsement, in the possession of the Master Servicer or the Special Servicer
and relating to the origination and servicing of any Mortgage Loan or the
administration of any REO Property.
"Servicing Function Participant": Any Additional Servicer,
Sub-Servicer, Subcontractor or any other Person, other than the Master Servicer,
the Special Servicer, the Trustee and the Certificate Administrator, 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, the Certificate Administrator and the
Depositor on the Closing Date, as such list may be amended from time to time
thereafter.
"Servicing-Released Bid": As defined in Section 7.01(d).
"Servicing-Retained Bid": As defined in Section 7.01(d).
"Servicing Return Date": With respect to any Corrected Serviced
Loan, the date that servicing thereof is returned by the Special Servicer to the
Master Servicer pursuant to Section 3.21(a).
"Servicing Standard": With respect to each of the Master Servicer
and the Special Servicer subject to applicable law and the express terms of the
relevant Loans and in the case of a Serviced Whole Loan, the related
Intercreditor Agreement, to service and administer the Serviced Loans and any
REO Properties for which such Person is responsible hereunder: (a) with the same
care, skill, prudence and diligence as is normal and usual in its general
mortgage servicing and REO property management activities on behalf of third
parties or on behalf of itself, whichever is higher, with respect to mortgage
loans and REO properties that are comparable to those for which it is
responsible hereunder; (b) with a view to the timely collection of all scheduled
payments of principal and interest under the Serviced Loans, the full collection
of all Prepayment Premiums that may become payable under the Serviced Loans and,
in the case of the Special Servicer, if a Serviced Loan comes into and continues
in default and if, in the good faith and reasonable judgment of the Special
Servicer, no satisfactory arrangements can be made for the collection of the
delinquent payments (including payments of Prepayment Premiums), the
maximization of the recovery on such Serviced Loan to the Certificateholders,
and, in the case of a Serviced Whole Loan, on behalf of the related Companion
Loan Holder, as a collective whole, on a net present value basis; and (c)
without regard to: (i) any known relationship that the Master Servicer (or any
Affiliate thereof) or the Special Servicer (or any Affiliate thereof), as the
case may be, may have with the related Mortgagor or with any other party to this
Agreement; (ii) the ownership of any Certificate or Companion Loan Holder or any
interest in any mezzanine loan by the Master Servicer (or any Affiliate thereof)
or the Special Servicer (or any Affiliate thereof), as the case may be; (iii)
the obligation of the Master Servicer to make Advances, (iv) the obligation of
the Special Servicer to make, or direct the Master Servicer to make, Servicing
Advances; (v) the right of the Master Servicer (or any Affiliate thereof) or the
Special Servicer (or any Affiliate thereof), as the case may be, to receive
reimbursement of costs, or the sufficiency of any compensation payable to it,
hereunder or with respect to any particular transaction; (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 the 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 (x) the
related Borrower is actively seeking a refinancing commitment, (y) the
related Borrower continues to make payments in the amount of its Monthly
Payment, and (z) subject to Section 3.21(f), the Directing
Certificateholder consents, for 60 days beyond the related maturity date
or, if the related Mortgagor has delivered to the Master Servicer, on or
before the 60th day after the related maturity date, a refinancing
commitment reasonably acceptable to the Master Servicer, for such longer
period, not to exceed 120 days beyond the related maturity date, during
which the refinancing would occur; or
(b) the Master Servicer (or the Special Servicer with the consent of
the Directing Certificateholder) has determined, in its reasonable, good
faith judgment, that a default in the making of a Monthly Payment
(including a Balloon Payment) or any other material payment required under
the related loan documents is likely to occur within 30 days and either
(i) the related Mortgagor has requested a material modification of the
payment terms of the Serviced Loan or (ii) such default is likely to
remain unremedied for at least the period contemplated by clause (a) of
this definition; or
(c) the Master Servicer (or the Special Servicer with the consent of
the Directing Certificateholder) has determined, in its reasonable, good
faith judgment, that a default, other than as described in clause (a) or
(b) of this definition, has occurred or is imminent that may materially
impair the value of the related Mortgaged Property as security for the
Serviced Loan, which default has continued or is reasonably expected to
continue unremedied for the applicable cure period under the terms of the
Serviced Loan (or, if no cure period is specified, for 60 days); or
(d) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary action against the
related Mortgagor under any present or future U.S. federal or state
bankruptcy, insolvency or similar law or the appointment of a conservator,
receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceeding, or for the
winding-up or liquidation of its affairs, shall have been entered against
the related Mortgagor; or
(e) the related Mortgagor shall have consented to the appointment of
a conservator, receiver or liquidator in any insolvency, readjustment of
debt, marshalling of assets and liabilities or similar proceeding of or
relating to such Mortgagor or of or relating to all or substantially all
of its property; or
(f) the related Mortgagor shall have admitted in writing its
inability to pay its debts generally as they become due, filed a petition
to take advantage of any applicable insolvency or reorganization statute,
made an assignment for the benefit of its creditors, or voluntarily
suspended payment of its obligations; or
(g) the Master Servicer shall have received notice of the
commencement of foreclosure or similar proceedings with respect to the
related Mortgaged Property.
Notwithstanding the foregoing, with respect to any Serviced Whole
Loan, the related Mortgage Loan and each related Companion Loan shall be deemed
to be a Specially Serviced Loan if any loan within such Serviced Whole Loan
becomes a Specially Serviced Loan.
A Servicing Transfer Event with respect to any Serviced Loan shall
cease to exist:
(w) in the case of the circumstances described in clause (a) of this
definition, if and when the related Mortgagor has made three consecutive
full and timely Monthly Payments under the terms of such Loan (as such
terms may be changed or modified in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or by reason of a
modification, waiver or amendment granted or agreed to by the Master
Servicer or the Special Servicer pursuant to Section 3.20);
(x) in the case of the circumstances described in clauses (b), (d),
(e) and (f) of this definition, if and when such circumstances cease to
exist in the reasonable, good faith judgment of the Special Servicer;
(y) in the case of the circumstances described in clause (c) of this
definition, if and when such default is cured in the reasonable, good
faith judgment of the Special Servicer; and
(z) in the case of the circumstances described in clause (g) of this
definition, if and when such proceedings are terminated;
so long as at that time no circumstance identified in clauses (a) through (g) of
this definition exists that would cause the Loan to continue to be characterized
as a Specially Serviced Loan and provided that no additional default is
foreseeable in the reasonable good faith judgment of the Special Servicer.
"Similar Law": As defined in Section 5.02(c).
"Single-Purpose-Entity": A Person, other than an individual, whose
organizational documents provide that it is formed solely for the purpose of
owning the related Mortgaged Property, Mortgaged Properties securing other Loans
and assets incidental to the ownership and operation of such Mortgaged Property
or Properties, and that has agreed, either in such organizational documents or
the loan documents relating to any related Loan, that it (a) does not engage in
any business unrelated to such property and the financing thereof; (b) does not
have any indebtedness other than as permitted by the related Mortgage, (c)
maintains its own books, records and accounts, in each case that are separate
and apart from the books, records and accounts of any other Person; (d) conducts
business in its own name; (e) does not guarantee or assume the debts or
obligations of any other person; (f) does not commingle its assets or funds with
those of any other Person; (g) transacts business with affiliates on an arm's
length basis; and (h) holds itself out as being a legal entity separate and
apart from any other Person. In addition, such entity's organizational documents
provide that any dissolution and winding up or insolvency filing for such entity
requires either the unanimous consent of all partners or members, as applicable,
or the consent of an independent Person (whether as a partner, member, or
director in such entity or in any Person that is the managing member or general
partner of such entity or otherwise), and either such organizational documents
or the terms of the loan documents provide that such organizational documents
may not be amended without the consent of the lender as regards such single
purpose entity requirements.
"Single Certificate": For purposes of Section 4.02(a), a Certificate
of any Class of REMIC II Regular Certificates evidencing a $1,000 denomination
or, in the case of a Class XW Certificate, a 100% Percentage Interest.
"Xxxxx Xxxxxx Building A/B Companion Loan": The loan evidenced by
the Xxxxx Xxxxxx Building Note B, which is not an asset of the Trust Fund.
"Xxxxx Xxxxxx Building A/B Companion Loan Holder": The holder of
the Xxxxx Xxxxxx Building A/B Companion Loan.
"Xxxxx Xxxxxx Building A/B Mortgage Loan": The Mortgage Loan
identified as Loan No. 3406564 in the Mortgage Loan Schedule, which, together
with the Xxxxx Xxxxxx Building Note B, is secured by a Mortgage on the Xxxxx
Xxxxxx Building Mortgaged Property.
"Xxxxx Xxxxxx Building A/B Whole Loan": The Xxxxx Xxxxxx Building
A/B Mortgage Loan, together, with the Xxxxx Xxxxxx Building A/B Companion Loan.
References herein to the Xxxxx Xxxxxx Building A/B Whole Loan shall be construed
to refer to the aggregate indebtedness under the Xxxxx Xxxxxx Building Note A
and the Xxxxx Xxxxxx Building Note B.
"Xxxxx Xxxxxx Building A/B Whole Loan Purchase Option": As
defined in Section 3.18(l).
"Xxxxx Xxxxxx Building A/B Whole Loan Purchase Option Holder": As
defined in Section 3.18(l).
"Xxxxx Xxxxxx Building Control Appraisal Period": The meaning
assigned to "Control Appraisal Period" in the Xxxxx Xxxxxx Building
Intercreditor Agreement.
"Xxxxx Xxxxxx Building Controlling Holder": The meaning assigned to
"Controlling Holder" in the Xxxxx Xxxxxx Building Intercreditor Agreement (or an
"Operating Advisor", as defined in the Xxxxx Xxxxxx Building Intercreditor,
acting on behalf of the Xxxxx Xxxxxx Building Controlling Holder). The initial
Xxxxx Xxxxxx Building Controlling Holder shall be set forth on Schedule VII
hereto.
"Xxxxx Xxxxxx Building Intercreditor Agreement": The Intercreditor
Agreement dated as of July 3, 2007 and between the Xxxxx Xxxxxx Building Note A
Holder and the Xxxxx Xxxxxx Building 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.
"Xxxxx Xxxxxx Building Mortgaged Property": The Mortgaged
Property that secures the Xxxxx Xxxxxx Building A/B Whole Loan.
"Xxxxx Xxxxxx Building Note A": With respect to the Xxxxx Xxxxxx
Building A/B Mortgage Loan, the related Mortgage Note that is included in the
Trust Fund.
"Xxxxx Xxxxxx Building Note A Holder": The holder of the Xxxxx
Xxxxxx Building Note A, initially Bank of America, National Association.
"Xxxxx Xxxxxx Building Note B": The Mortgage Note related to the
Xxxxx Xxxxxx Building A/B Companion Loan that is not included in the Trust Fund,
which is subordinated in right of payment to the Xxxxx Xxxxxx Building Note A to
the extent set forth in the Xxxxx Xxxxxx Building Intercreditor Agreement.
"Xxxxx Xxxxxx Building Note B Holder": The holder of the Xxxxx
Xxxxxx Building Note B, as of the Closing Date, CBRE Realty Finance.
"Xxxxx Xxxxxx Building Noteholders": The Xxxxx Xxxxxx Building
Note A Holder and the Xxxxx Xxxxxx Building Note B Holder.
"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 have been reduced to zero.
"Special Action": As defined in Section 3.21(e).
"Special Servicer": Centerline Servicing Inc., its successors in
interest, or any successor special servicer appointed as herein provided.
"Special Servicing Fee": With respect to each Specially Serviced
Loan and each REO Loan, the fee designated as such and payable to the Special
Servicer pursuant to the first paragraph of Section 3.11(c).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Loan and each REO Loan, 0.25% (25 basis points) per annum.
"Specially Serviced Loan": Any Serviced Loan as to which there then
exists a Servicing Transfer Event. Upon the occurrence of a Servicing Transfer
Event with respect to any Serviced Loan, such Serviced Loan shall remain a
Specially Serviced Loan until the earliest of (i) its removal from the Trust
Fund (in the case of a Mortgage Loan), (ii) a REO Acquisition with respect to
the related Mortgaged Property and (iii) the cessation of all existing Servicing
Transfer Events with respect to such Serviced Loan.
"Startup Day": With respect to each of REMIC I and REMIC II, the day
designated as such in Section 10.01(c).
"Stated Maturity Date": With respect to any Loan, the Due Date on
which the last payment of principal is due and payable under the terms of the
related Mortgage Note as in effect on the Closing Date, without regard to any
change in or modification of such terms in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or a modification, waiver or
amendment of such Loan granted or agreed to by the Master Servicer or Special
Servicer pursuant to Section 3.20 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 Serviced Whole Loan, the Stated Principal Balance
shall be the sum of the "Stated Principal Balance" of the related Mortgage Loan
and the Stated Principal Balance of the related Companion Loan.
The Stated Principal Balance of a Non-Serviced Loan will be
calculated in accordance with the definition of "Stated Principal Balance" in
the related Non-Serviced Loan Servicing Agreement.
"Sub-Servicer": Any Person with which the Master Servicer or the
Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement": The written contract between the Master
Servicer or the Special Servicer, on the one hand, and any Sub-Servicer, on the
other hand as provided in Section 3.22, as the same may be modified or amended.
"Subcontractor": Any vendor, subcontractor or other Person that is
not responsible for the overall servicing (as "servicing" is commonly understood
by participants in the mortgage-backed securities market) of Mortgage Loans but
performs one or more discrete functions identified in Item 1122(d) of Regulation
AB with respect to Mortgage Loans under the direction or authority of the Master
Servicer, the Special Servicer, the Trustee, the Certificate Administrator, any
Additional Servicer or any Sub-Servicer.
"Subordinate Certificate": Any 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, Class S Certificate or REMIC
Residual Certificate.
"Substitution Shortfall Amount": An amount equal to the excess if
any of the difference between the Purchase Price of the Deleted Mortgage Loan
calculated as of the date of substitution and the Stated Principal Balance of
such Qualifying Substitute Mortgage Loan as of the date of substitution.
"Successful Bidder": As defined in Section 7.01(d).
"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 Trust 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; provided that a portion of the Trustee Fee, namely
the Certificate Administrator Fee, shall be payable to the Certificate
Administrator.
"Trustee Fee Rate": A rate of 0.00118% per annum.
"UCC": The Uniform Commercial Code in effect in the applicable
jurisdiction.
"UCC Financing Statement": A financing statement executed (if
required by the UCC) and filed pursuant to the Uniform Commercial Code, as in
effect in the relevant jurisdiction.
"UCC-1", "UCC-2" and "UCC-3": UCC Financing Statements on Form
UCC-1, Form UCC-2 and Form UCC-3, respectively.
"Uncertificated Accrued Interest": With respect to any REMIC I
Regular Interest, for any Distribution Date, one month's interest at the REMIC I
Remittance Rate applicable to such REMIC I Regular Interest for such
Distribution Date, accrued on the REMIC I Principal Balance of such REMIC I
Regular Interest outstanding immediately prior to such Distribution Date. The
Uncertificated Accrued Interest in respect of any REMIC I Regular Interest for
any Distribution Date shall be deemed to have accrued during the applicable
Interest Accrual Period.
"Uncertificated Distributable Interest": With respect to any REMIC I
Regular Interest, for any Distribution Date, the Uncertificated Accrued Interest
in respect of such REMIC I Regular Interest for such Distribution Date, reduced
(to not less than zero) by the product of (i) the Net Aggregate Prepayment
Interest Shortfall, if any, for such Distribution Date, multiplied by (ii) a
fraction, the numerator of which is the Uncertificated Accrued Interest in
respect of such REMIC I Regular Interest for such Distribution Date, and the
denominator of which is the aggregate Uncertificated Accrued Interest in respect
of all the REMIC I Regular Interests for such Distribution Date.
"Underwriter": Each of Banc of America Securities LLC and
Greenwich Capital Markets, Inc.
"Underwriting Agreement: The underwriting agreement dated as of
December 20, 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 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.
"West Hartford Portfolio A/B Companion Loan": The loan evidenced by
the West Hartford Portfolio Note B, which is not an asset of the Trust Fund.
"West Hartford Portfolio A/B Companion Loan Holder": The holder
of the West Hartford Portfolio A/B Companion Loan.
"West Hartford Portfolio A/B Mortgage Loan": The Mortgage Loan
identified as Loan No. 3406564 in the Mortgage Loan Schedule, which, together
with the West Hartford Portfolio Note B, is secured by a Mortgage on the West
Hartford Portfolio Mortgaged Property.
"West Hartford Portfolio A/B Whole Loan": The West Hartford
Portfolio A/B Mortgage Loan, together, with the West Hartford Portfolio A/B
Companion Loan. References herein to the West Hartford Portfolio A/B Whole Loan
shall be construed to refer to the aggregate indebtedness under the West
Hartford Portfolio Note A and the West Hartford Portfolio Note B.
"West Hartford Portfolio A/B Whole Loan Purchase Option": As
defined in Section 3.18(l).
"West Hartford Portfolio A/B Whole Loan Purchase Option Holder":
As defined in Section 3.18(l).
"West Hartford Portfolio Control Appraisal Period": The meaning
assigned to "Control Appraisal Period" in the West Hartford Portfolio
Intercreditor Agreement.
"West Hartford Portfolio Controlling Holder": The meaning assigned
to "Controlling Holder" in the West Hartford Portfolio Intercreditor Agreement
(or an "Operating Advisor", as defined in the West Hartford Portfolio
Intercreditor, acting on behalf of the West Hartford Portfolio Controlling
Holder). The initial West Hartford Portfolio Controlling Holder shall be set
forth on Schedule VII hereto.
"West Hartford Portfolio Intercreditor Agreement": The Intercreditor
Agreement dated as of August 20, 2007 and between the West Hartford Portfolio
Note A Holder and the West Hartford Portfolio 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.
"West Hartford Portfolio Mortgaged Property": The Mortgaged
Property that secures the West Hartford Portfolio A/B Whole Loan.
"West Hartford Portfolio Note A": With respect to the West Hartford
Portfolio A/B Mortgage Loan, the related Mortgage Note that is included in the
Trust Fund.
"West Hartford Portfolio Note A Holder": The holder of the West
Hartford Portfolio Note A, initially Bank of America, National Association.
"West Hartford Portfolio Note B": The Mortgage Note related to the
West Hartford Portfolio A/B Companion Loan that is not included in the Trust
Fund, which is subordinated in right of payment to the West Hartford Portfolio
Note A to the extent set forth in the West Hartford Portfolio Intercreditor
Agreement.
"West Hartford Portfolio Note B Holder": The holder of the West
Hartford Portfolio Note B, as of the Closing Date, RCG Longview.
"West Hartford Portfolio Noteholders": The West Hartford
Portfolio Note A Holder and the West Hartford Portfolio Note B Holder.
"WHFIT": A "Widely Held Fixed Investment Trust" as that term is
defined in Treasury Regulations Section 1.671-5(b)(22) or successor provisions.
"Whole Loan": Each A/B Whole Loan and each Pari Passu Whole Loan, as
defined herein.
"Withheld Amounts": As defined in Section 4.05.
"Within Grace Period Loan": With respect to any Master Servicer
Remittance Date, any Serviced Loan having any Monthly Payment remaining unpaid
past its Due Date, as of the close of business on the Determination Date in the
same calendar month, but that is not delinquent past the applicable grace period
for such Monthly Payment as of the close of business on such Determination Date.
"Workout-Delayed Reimbursement Amount": With respect to any Serviced
Loan, the amount of any Advance made with respect to such Loan on or before the
date such Loan becomes (or, but for the making of three monthly payments under
its modified terms, would then constitute) a Corrected Serviced Loan, together
with (to the extent accrued and unpaid) interest on such Advances, to the extent
that (i) such Advance is not reimbursed to the Person who made such Advance on
or before the date, if any, on which such Serviced Loan becomes a Corrected
Serviced Loan and (ii) the amount of such Advance becomes an obligation of the
Mortgagor to pay such amount under the terms of the modified loan documents.
That any amount constitutes all or a portion of any Workout-Delayed
Reimbursement Amount shall not in any manner limit the right of any Person
hereunder to determine that such amount instead constitutes a Nonrecoverable
Advance reimbursable in the same manner as any other Nonrecoverable Advance.
"Workout Fee": With respect to each Corrected Serviced Loan, the fee
designated as such and payable to the Special Servicer pursuant to the second
paragraph of Section 3.11(c).
"Workout Fee Rate": With respect to each Corrected Serviced Loan
as to which a Workout Fee is payable, 1.0% (100 basis points).
Section 1.02 Rules of Construction; Other Definitional Provisions.
Unless the context otherwise clearly requires:
(a) the definitions of terms herein shall apply equally to the singular
and plural forms of the terms defined;
(b) whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms;
(c) the words "include", "includes" and "including" shall be deemed to
be followed by the phrase "without limitation";
(d) the word "will" shall be construed to have the same meaning and
effect as the word "shall";
(e) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement,
instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on
such amendments, supplements or modifications set forth herein);
(f) any reference to any Person, or to any Person in a specified
capacity, shall be construed to include such Person's successors and
assigns or such Person's successors in such capacity, as the case
may be;
(g) unless otherwise specified herein, "pro rata" when used in reference
to more than one Class of the Certificates shall mean "pro rata"
based on the outstanding Class Principal Balances of such Classes of
Certificates;
(h) all references in this instrument to designated "Articles",
"Sections", "Subsections", "clauses" and other subdivisions are to
the designated Articles, Sections, Subsections, clauses and other
subdivisions of this Agreement as originally executed; and
(i) the words "herein", "hereof", "hereunder" and other words of similar
import refer to this Agreement as a whole and not to any particular
Article, Section, Subsection or other subdivision.
Section 1.03 Certain Calculations in Respect of the Mortgage Pool.
(a) All amounts collected by or on behalf of the Trust in respect of
any Cross-Collateralized Set in the form of payments from Mortgagors, Insurance
Proceeds, Condemnation Proceeds and Liquidation Proceeds shall be applied among
the Mortgage Loans constituting such Cross-Collateralized Set in accordance with
the express provisions of the related loan documents and, in the absence of such
express provisions, in accordance with the Servicing Standard. All amounts
collected by or on behalf of the Trust in respect of any Serviced Whole Loan in
the form of payments from Mortgagors, Insurance Proceeds, Condemnation Proceeds
and Liquidation Proceeds shall be applied among the Mortgage Loan and Companion
Loan(s) constituting such Serviced Whole Loan in accordance with the express
provisions of the related Intercreditor Agreement and, in the absence of such
express provisions, in accordance with this Agreement. All amounts collected by
or on behalf of the Trust in respect of or allocable to any particular Mortgage
Loan in the form of payments from Mortgagors, Insurance Proceeds, Condemnation
Proceeds or Liquidation Proceeds shall be applied to amounts due and owing under
the related Mortgage Note and Mortgage (including for principal and accrued and
unpaid interest) in accordance with the express provisions of the related loan
documents and, in the absence of such express provisions or if and to the extent
that such terms authorize the lender to use its discretion, shall be applied:
first, as a recovery of Nonrecoverable Advances (including interest on such
Nonrecoverable Advances) and Workout-Delayed Reimbursement Amounts that were
reimbursed from general collections on the Mortgage Loans and resulted in
principal distributed to the Certificateholders being reduced as a result of the
first proviso in the definition of "Principal Distribution Amount", and, if
applicable, unpaid Liquidation Expenses and any outstanding 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 any Non-Serviced Mortgage Loan becomes an
"REO Loan" as defined under the related Non-Serviced Loan 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 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
Principal 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 Certificate Administrator Report as provided in Section
4.02.
If an expense under this Agreement relates in the reasonable
judgment of the Master Servicer, the Special Servicer, the Trustee or the
Certificate Administrator, as applicable, primarily to the administration of the
Trust Fund, any REMIC formed hereunder or to any determination respecting the
amount, payment or avoidance of any tax under the REMIC Provisions or the actual
payment of any REMIC tax or expense, or this Agreement states that any expense
is solely "an expense of the Trust Fund" or words of similar import, then such
expense shall not be allocated to, deducted or reimbursed from, or otherwise
charged against any Companion Loan and such Companion Loan Holder shall not
suffer any adverse consequences as a result of the payment of such expense.
Section 1.04 Cross-Collateralized Mortgage Loans.
Notwithstanding anything herein to the contrary, it is hereby
acknowledged that the sets of Mortgage Loans identified on the Mortgage Loan
Schedule as being cross-collateralized with each other are, in the case of each
such particular set of Mortgage Loans, by their terms, cross-defaulted and
cross-collateralized with each other. For purposes of reference only in this
Agreement, and without in any way limiting the servicing rights and powers of
the Master Servicer and/or the Special Servicer, with respect to any
Cross-Collateralized Mortgage Loan (or successor REO Loan), the Mortgaged
Property (or REO Property) that relates or corresponds thereto shall be the
property identified in the Mortgage Loan Schedule as corresponding thereto. The
provisions of this Agreement shall be interpreted in a manner consistent with
this Section 1.04; provided that, if there exists with respect to any
Cross-Collateralized Set only one original of any document referred to in the
definition of "Mortgage File" covering all the Mortgage Loans in such
Cross-Collateralized Set, then the inclusion of the original of such document in
the Mortgage File for any of the Mortgage Loans constituting such
Cross-Collateralized Set shall be deemed an inclusion of such original in the
Mortgage File for each such Mortgage Loan.
Section 1.05 Incorporation of Preliminary Statement.
The parties hereto acknowledge that the Preliminary Statement at the
beginning of this Agreement constitutes a part of this Agreement.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES; ORIGINAL
ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.
(a) It is the intention of the parties hereto that a common law
trust be established pursuant to this Agreement and further such trust be
designated as "Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-5". Xxxxx Fargo Bank, N.A. is hereby
appointed, and does hereby agree to act, as Trustee hereunder and, in such
capacity, to hold the Trust Fund in trust for the exclusive use and benefit of
all present and future Certificateholders. It is not intended that this
Agreement create a partnership or a joint-stock association.
(b) The Depositor, concurrently with the execution and delivery
hereof, does hereby transfer, assign, sell, set over and otherwise convey to the
Trustee, in trust, without recourse, for the benefit of the Certificateholders
(and for the benefit of the other parties to this Agreement as their respective
interests may appear) and, in the case of a Serviced Whole Loan, the related
Companion Loan Holder, all the right, title and interest of the Depositor in, to
and under (i) the Mortgage Loans and all documents included in the related
Mortgage Files and Servicing Files, (ii) the Mortgage Loan Purchase and Sale
Agreement 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 Mortgage Loan Seller), together with all
documents delivered or caused to be delivered hereunder with respect to such
Mortgage Loans by the 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 each Non-Serviced
Mortgage Loan, along with the right to service each such Non-Serviced Mortgage
Loan is subject to the terms and conditions of the related Non-Serviced Loan
Servicing Agreement and the related Intercreditor Agreement. In connection with
the transfer and assignment set forth in this Section 2.01, the Depositor shall
make a cash deposit to the Certificate Account in an amount equal to the
Interest Deposit Amount. 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 Seller, pursuant to the Mortgage Loan Purchase and Sale Agreement,
as a purchase of such Mortgage Loans from the Mortgage Loan Seller; 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 Seller, at the Mortgage Loan Seller's
expense, pursuant to the Mortgage Loan Purchase and Sale Agreement, 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 Seller. 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
Seller 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 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 the Mortgage Loan
Purchase and Sale Agreement. If the 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 the Mortgage Loan
Seller delivers such document to the Trustee (or, in the case of originals of
Letters of Credit, to the Master Servicer) within 15 days following the Closing
Date. With respect to the Mortgage Loans so assigned, the Trustee shall provide
a certification within 30 days of the Closing Date that a copy of the Mortgage,
a copy of any related Ground Lease, the originals of any related Letters of
Credit, the original or a copy of the policy of lender's title insurance or, if
such policy has not yet been issued, a "marked-up" pro forma title policy or
commitment for title insurance marked as binding and countersigned by the issuer
or its authorized agent either on its face or by an acknowledged closing
instruction or escrow letter, or, with respect to hospitality properties, a copy
of the franchise agreement, an original copy of the comfort letter and any
transfer documents with respect to such comfort letter due on the Closing Date
have been delivered (with any exceptions noted). None of the Trustee, any
Custodian, the Certificate Administrator, the Master Servicer or the Special
Servicer shall be liable for any failure by the Mortgage Loan Seller or the
Depositor to comply with the document delivery requirements of the Mortgage Loan
Purchase and Sale Agreement 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 December 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 or the REO
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
Agreement, (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 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
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). The 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 Mortgage Loan
Seller to prepare or cause to be prepared promptly, pursuant to the 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 the Mortgage Loan Seller. If
the 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. The 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 the Mortgage Loan Seller and acquired by the
Depositor from the Mortgage Loan Seller, all as more particularly provided for
in the 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 the Mortgage Loan Seller, at the Mortgage Loan Seller's
expense, pursuant to the 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 the
Mortgage Loan Seller that relate to the Mortgage Loans transferred by the
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 the 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 the Mortgage Loan
Seller that relate to, and that are required for the ongoing administration and
servicing of, the Mortgage Loans transferred by the 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 Mortgage Loan
Seller, where applicable, the Trustee shall re-assign any rights that the
Mortgage Loan Seller had with respect to representations and warranties made by
a third party originator to the Mortgage Loan Seller under the Mortgage Loan
Purchase and Sale Agreement in respect of any such Mortgage Loan.
(f) The Certificate Administrator hereby acknowledges the receipt by
it of the Interest Deposit Amount. The Certificate Administrator shall hold such
Interest Deposit Amount in the Distribution Account and shall include the
Interest Deposit Amount in the Available Distribution Amount for the first
Distribution Date. The Interest Deposit Amount shall remain uninvested.
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 Seller 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.
To the extent that the Mortgage File for a Mortgage Loan included in a Serviced
Whole Loan relates to the Mortgage Loan as well as the related Companion Loan,
the Trustee shall also hold such Mortgage File for the use and benefit of the
related Companion Loan Holder.
(b) On or about the ninetieth day following the Closing Date, the
Trustee or a Custodian on its behalf shall review the documents delivered to it
or such Custodian with respect to each Mortgage Loan, and the Trustee shall,
subject to Section 1.04, Section 2.02(c) and Section 2.02(d), certify
electronically or in writing (substantially in the form of Exhibit F) to each of
the other parties hereto, the Mortgage Loan Seller, 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 the 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,
the Certificate Administrator 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 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, the Certificate
Administrator 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
Seller 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 the
Mortgage Loan Seller is notified of or discovers any error in a Mortgage Loan
Checklist, then the 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 Mortgage Loan Seller.
(b) If necessary, the Trustee shall request the Mortgage Loan Seller
to comply with Section 4(c) of the 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 the 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 Mortgage Loan Seller in writing of
such Material Document Defect or Material Breach, as the case may be, and direct
the 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 Mortgage Loan Purchase and Sale
Agreement), at the applicable Purchase Price; provided, however, if the 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 the 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 the 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 Certificate
Administrator, 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 the 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), the Mortgage
Loan Seller shall be permitted, during the three-month period following the
Startup Day for REMIC I (or during the two-year period following such Startup
Day if the Defective Mortgage Loan is a "defective obligation" within the
meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulations
Section 1.860G-2(f)), to replace the Defective Mortgage Loan, other than a
Non-Serviced Mortgage Loan, with one or more Qualifying Substitute Mortgage
Loans and to pay a cash amount equal to the applicable Substitution Shortfall
Amount, subject to any other applicable terms and conditions of the 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, the 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 and the Certificate Administrator 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 the Mortgage Loan Seller were to
repurchase or substitute for only the affected Crossed-Collateralized Mortgage
Loans or affected Mortgaged Properties as to which a Material Breach or Material
Document Defect had occurred without regard to this paragraph: (i) the debt
service coverage ratio for any related Cross-Collateralized Mortgage Loans or
Mortgaged Properties for the four calendar quarters immediately preceding the
repurchase or substitution is not less than the greater of (a) the debt service
coverage ratio immediately prior to the repurchase, and (b) the debt service
coverage ratio on the Closing Date, subject to a floor of 1.25x, and (ii) the
loan-to-value ratio for any related Crossed-Collateralized Mortgage Loans or
Mortgaged Properties is not greater than the lesser of (a) the loan-to-value
ratio immediately prior to the repurchase and (b) the loan-to-value ratio on the
Closing Date, subject to a cap of 75%. In the event that both of the conditions
set forth in the preceding sentence would be satisfied, the 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 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, the Mortgage Loan Seller and the
Depositor shall either uncross the repurchased Cross-Collateralized Mortgage
Loan or affected Mortgaged Property (provided the Depositor has received an
Opinion of Counsel that uncrossing the repurchased Cross-Collateralized Mortgage
Loan will not adversely affect the status of either REMIC I or REMIC II as a
REMIC under the Code) or shall forbear from enforcing any remedies against the
other's Primary Collateral, but each is permitted to exercise remedies against
the Primary Collateral securing its respective affected Cross-Collateralized
Mortgage Loans or Mortgaged Properties, including, with respect to the Trustee,
the Primary Collateral securing Mortgage Loans still held by the Trustee, so
long as such exercise does not materially impair the ability of the other party
to exercise its remedies against its Primary Collateral. If the exercise of
remedies by one party would materially impair the ability of the other party to
exercise its remedies with respect to the Primary Collateral securing the
Cross-Collateralized Mortgage Loans or Mortgaged Properties held by such party,
then both parties shall forbear from exercising such remedies until the loan
documents can be modified to remove the threat of such impairment as a result of
the exercise of remedies.
(e) Whenever one or more mortgage loans are substituted for a
Defective Mortgage Loan by the 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 December 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
Mortgage Loan Seller as contemplated by this Section 2.03, the Master Servicer
shall direct the Mortgage Loan Seller to amend the 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
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
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 Mortgage Loan Seller to the extent the Mortgage Loan Seller was required to
repurchase the Defective Mortgage Loan and then as Servicing Advances in respect
of the Defective Mortgage Loan.
(h) The 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 Mortgage Loan Seller. If the 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 the Mortgage Loan Seller in
respect of its obligations under Section 4 of the 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 the 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 the Mortgage Loan Seller because the 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 the Mortgage
Loan Seller under the Mortgage Loan Purchase and Sale Agreement. Such
enforcement including, without limitation, the legal prosecution of claims,
shall be carried out in such form, to such extent and at such time as the
Special Servicer or Master Servicer, as the case may be, shall reasonably
determine is in the best interests of the Certificateholders (taken as a
collective whole). All out-of-pocket expenses (including attorney's fees and
litigation costs and expenses) incurred by the Special Servicer or Master
Servicer, as the case may be, in carrying out its obligations hereunder shall be
reimbursable to the Special Servicer or Master Servicer, as the case may be, and
constitute Additional Trust Fund Expenses. The Trustee shall upon request
promptly furnish or cause to be furnished to the Special Servicer or Master
Servicer, as the case may be, limited powers of attorney and other documents
necessary, delivered to it by the Special Servicer or Master Servicer, as the
case may be, for execution, or appropriate to enable the Special Servicer or
Master Servicer, as the case may be, to carry out such enforcement duties
subject to Section 3.01(c).
(i) In the event that either pursuant to a settlement agreed to by
the 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, the 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
the 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 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 the 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 Mortgage Loan Seller
pursuant to the 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 the Mortgage Loan Purchase and Sale
Agreement, and further except for actions that the Depositor is expressly
permitted to complete subsequent to the Closing Date, the Depositor has
taken all actions required under applicable law to effectuate the transfer
of all of its right, title and interest in and to the Mortgage Loans by
the Depositor to the Trustee.
(b) Upon discovery by any of the parties hereto of a breach of any
of the foregoing representations and warranties that materially and adversely
affects the interests of the Certificateholders or any party hereto, the party
discovering such breach shall give prompt written notice to each of the other
parties hereto.
Section 2.05 Representations and Warranties of the Master Servicer.
(a) The Master Servicer hereby represents and warrants to the other
parties hereto and for the benefit of the Certificateholders and, in the case of
a Whole Loan, the related Companion Loan Holder, as of the Closing Date, that:
(i) The Master Servicer is duly organized, validly existing and in
good standing as a national banking association under the laws of the
United States of America, and the Master Servicer is in compliance with
the laws of each jurisdiction in which any Mortgaged Property is located
to the extent necessary to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Master
Servicer, and the performance and compliance with the terms of this
Agreement by the Master Servicer, do not violate the Master Servicer's
organizational documents or constitute a default (or an event that, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other instrument to
which it is a party or that is applicable to it or any of its assets,
which default or breach, in the Master Servicer's good faith and
reasonable judgment, is likely to materially and adversely affect the
ability of the Master Servicer to perform its obligations under this
Agreement.
(iii) The Master Servicer has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Master Servicer, enforceable against the
Master Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, conservatorship, receivership,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally, and (B) general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law.
(v) The Master Servicer is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement do not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Master Servicer's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Master Servicer to perform its obligations under this
Agreement or the financial condition of the Master Servicer.
(vi) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer that would
prohibit the Master Servicer from entering into this Agreement or, in the
Master Servicer's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Master Servicer
to perform its obligations under this Agreement or the financial condition
of the Master Servicer.
(vii) Each officer or employee of the Master Servicer that has
responsibilities concerning the servicing and administration of the
Serviced Loans is covered by errors and omissions insurance in the amounts
and with the coverage required by Section 3.07(c). None of the Master
Servicer or any of its officers or employees that is involved in the
servicing or administration of the Serviced Loans has been refused such
coverage or insurance.
(viii) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Master Servicer of the
transactions contemplated herein, except for those consents, approvals,
authorizations and orders that previously have been obtained and those
filings and registrations that previously have been completed.
(ix) The Master Servicer has examined each of the Sub-Servicing
Agreements entered into by the Master Servicer that will be in effect as
of the Closing Date with respect to the Serviced Loans, and each such
Sub-Servicing Agreement complies with the requirements of Section 3.22(a)
in all material respects.
(b) The representations and warranties of the Master Servicer set
forth in Section 2.05(a) shall survive the execution and delivery of this
Agreement and inure to the benefit of the Persons for whose benefit they were
made for so long as the Trust remains in existence. Upon discovery by any of the
parties hereto of a breach of any of such representations and warranties that
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
(c) Each successor Master Servicer (if any) shall be deemed to have
made, as of the date of its succession, each of the representations set forth in
Section 2.05(a), subject to such appropriate modifications to the representation
and warranty set forth in Section 2.05(a)(i) to accurately reflect such
successor's jurisdiction of organization and whether it is a corporation,
partnership, bank, association or other type of organization.
Section 2.06 Representations and Warranties of the Special Servicer.
(a) The Special Servicer hereby represents and warrants to the other
parties hereto and for the benefit of the Certificateholders and, in the case of
a Whole Loan, the related Companion Loan Holder, as of the Closing Date, that:
(i) The Special Servicer is duly organized, validly existing and in
good standing as a corporation under the laws of the State of Delaware,
and the Special Servicer is in compliance with the laws of each
jurisdiction in which any Mortgaged Property is located to the extent
necessary to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Special
Servicer, and the performance and compliance with the terms of this
Agreement by the Special Servicer, do not violate the Special Servicer's
organizational documents or constitute a default (or an event that, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other instrument to
which it is a party or that is applicable to it or any of its assets,
which default, in the Special Servicer's reasonable judgment, is likely to
materially and adversely effect either the ability of the Special Servicer
to perform its obligations under this Agreement or the financial condition
of the Special Servicer.
(iii) The Special Servicer has the full corporate power and
authority to enter into and consummate all transactions contemplated by
this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Special Servicer, enforceable against the
Special Servicer in accordance with the terms hereof, except as such
enforcement may be limited by (A) applicable bankruptcy, receivership,
insolvency, reorganization, liquidation, fraudulent transfer, moratorium
and other laws affecting the enforcement of creditors' rights generally,
and (B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(v) The Special Servicer is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement do not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Special Servicer's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Special Servicer to perform its obligations under this
Agreement or the financial condition of the Special Servicer.
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened against the Special Servicer, the outcome
of which in the Special Servicer's reasonable judgment, is likely to
materially and adversely affect either the ability of the Special Servicer
to perform its obligations under this Agreement or the financial condition
of the Special Servicer.
(vii) Each officer or employee of the Special Servicer that has
responsibilities concerning the servicing and administration of the
Serviced Loans is covered by errors and omissions insurance in the amounts
and with the coverage required by Section 3.07(c).
(viii) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Special Servicer of the
transactions contemplated herein, except for those consents, approvals,
authorizations and orders that previously have been obtained and those
filings and registrations that previously have been completed.
(b) The representations and warranties of the Special Servicer set
forth in Section 2.06(a) shall survive the execution and delivery of this
Agreement and inure to the benefit of the Persons for whose benefit they were
made for so long as the Trust remains in existence. Upon discovery by any of the
parties hereto of a breach of any of such representations and warranties that
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
(c) Each successor Special Servicer (if any) shall be deemed to have
made, as of the date of its succession, each of the representations set forth in
Section 2.06(a), subject to such appropriate modifications to the representation
and warranty set forth in Section 2.06(a)(i) to accurately reflect such
successor's jurisdiction of organization and whether it is a corporation,
partnership, bank, association or other type of organization.
Section 2.07 Representations and Warranties of the Trustee.
(a) Xxxxx Fargo Bank, N.A., in its capacity as Trustee (the
"Trustee"), 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 Trustee 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 Trustee,
and the performance and compliance with the terms of this Agreement by the
Trustee, do not violate the Trustee'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 Trustee's
good faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Trustee to perform its obligations under
this Agreement or the financial condition of the Trustee.
(iii) The Trustee 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 Trustee, enforceable against the Trustee 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 Trustee 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 Trustee's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Trustee to perform its obligations under this Agreement or the
financial condition of the Trustee.
(vi) No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee that would prohibit the Trustee
from entering into this Agreement or, in the Trustee's good faith and
reasonable judgment, is likely to materially and adversely affect either
the ability of the Trustee to perform its obligations under this Agreement
or the financial condition of the Trustee.
(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 Trustee 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 Trustee 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 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 "Trustee"
shall be deemed to mean such successor Trustee.
Section 2.08 Representations and Warranties of the Certificate
Administrator and the REMIC Administrator.
(a) LaSalle Bank National Association, both in its capacity as
Certificate Administrator and in its capacity as REMIC Administrator (the
"Administrator"), 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 Administrator 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-certificate administrator
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
Administrator, and the performance and compliance with the terms of this
Agreement by the Administrator, do not violate the Administrator'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 Administrator's good faith and reasonable judgment,
is likely to materially and adversely affect either the ability of the
Administrator to perform its obligations under this Agreement or the
financial condition of the Administrator.
(iii) The Administrator 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 Administrator, enforceable against the
Administrator 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 Administrator 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 Administrator's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Administrator to perform its obligations under this
Agreement or the financial condition of the Administrator.
(vi) No litigation is pending or, to the best of the Administrator's
knowledge, threatened against the Administrator that would prohibit the
Administrator from entering into this Agreement or, in the Administrator's
good faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Administrator to perform its obligations
under this Agreement or the financial condition of the Administrator.
(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 Administrator 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 Administrator set
forth in Section 2.08(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 Certificate Administrator or REMIC Administrator
(if any and regardless of whether the Certificate Administrator 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
2.08(a), subject to such appropriate modifications to the representation and
warranty set forth in Section 2.08(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. For purposes of this Section, the
term "Administrator" shall be deemed to mean such successor Certificate
Administrator or the REMIC Administrator, as appropriate.
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
Certificate Administrator 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. 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.
Section 2.11 Issuance of the REMIC II Certificates.
Concurrently with the assignment to the Trustee of the REMIC I
Regular Interests, and in exchange therefor, at the direction of the Depositor,
the Certificate Administrator has executed, authenticated and delivered to or
upon the order of the Depositor, the REMIC II Certificates in authorized
denominations. The interests evidenced by the REMIC II Certificates constitute
the entire beneficial ownership of REMIC II. The rights of the Holders of the
REMIC II Certificates 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 Trust. 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 Trust.
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 Certificate Administrator 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.
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
Section 3.01 Administration of the Serviced Loans.
(a) Each of the Master Servicer and the Special Servicer shall
service and administer the Serviced Loans and any REO Properties that it is
obligated to service and administer pursuant to this Agreement on behalf of the
Trustee, and in the best interests and for the benefit of the Certificateholders
and, in the case of a Serviced Whole Loan, on behalf of the related Companion
Loan Holder, as a collective whole (and, in the case of a Serviced Whole Loan
that is an A/B Whole Loan, taking into account the subordination of the related
Companion Loan), in accordance with any and all applicable laws, the terms of
this Agreement, the terms of the respective Serviced Loans and, in the case of a
Serviced Whole Loan, the related Intercreditor Agreement, and, to the extent
consistent with the foregoing, in accordance with the Servicing Standard.
Without limiting the foregoing, and subject to Section 3.21, (i) the Master
Servicer shall service and administer all Performing Serviced Loans, and (ii)
the Special Servicer shall service and administer (x) each Serviced Loan (other
than a Corrected Serviced Loan) as to which a Servicing Transfer Event has
occurred and is continuing, and (y) each REO Property; provided, however, the
Master Servicer shall continue to collect information and prepare all reports to
the Trustee and the Certificate Administrator 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 Section 3.08 and Section 3.20, any and all assumptions,
modifications, waivers, substitutions, extensions, amendments and consents.
Subject to Section 3.10, the Trustee shall, at the written request of a
Servicing Officer of the Master Servicer or the Special Servicer, furnish, or
cause to be so furnished, to the Master Servicer or the Special Servicer, as
appropriate, any limited powers of attorney and other documents (each of which
shall be prepared by the Master Servicer or the Special Servicer, as applicable)
necessary or appropriate to enable it to carry out its servicing and
administrative duties hereunder; provided, that the Trustee shall not be held
liable for any misuse of any such power of attorney by the Master Servicer or
the Special Servicer and the Trustee will be indemnified pursuant to, and
subject to the limitations set forth in, Section 8.05 for any losses or expenses
it incurs due to the Master Servicer's use of such power of attorney.
(c) Notwithstanding anything contained herein to the contrary,
neither the Master Servicer nor the Special Servicer shall without the Trustee's
written consent: (i) except as provided in Section 3.10(d), initiate any action,
suit or proceeding solely under the Trustee's name without indicating the Master
Servicer's or such Special Servicer's, as applicable, representative capacity,
or (ii) take any action with the intent to cause, and that actually does cause,
the Trustee to be registered to do business in any state.
The Master Servicer and/or the Special Servicer shall indemnify the
Trustee for any and all costs, liabilities and expenses incurred by the Trustee
in connection with the negligent or willful misuse of such powers of attorney by
the Master Servicer or the Special Servicer, as applicable.
(d) The relationship of each of the Master Servicer and the Special
Servicer to the Trustee and the Certificate Administrator 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 Sawgrass Xxxxx
Whole Loan, the Arundel Xxxxx Xxxx Passu Whole Loan, the Xxxxx Xxxxxx Building
Pari Passu Whole Loan, the Green Oak Village Place A/B Whole Loan, the West
Hartford Portfolio A/B Whole Loan, the CVS Portfolio Pari Passu Whole Loan, the
CVS Portfolio Texas Pari Passu Whole Loan and the CVS - Gulfport Pari Passu
Whole Loan, is subject to the terms and conditions of the related Intercreditor
Agreement. The parties hereto further recognize: (i) the respective rights and
obligations of the "Noteholders" under the Sawgrass Xxxxx Intercreditor
Agreement, including with respect to the allocation of collections on or in
respect of the Sawgrass Xxxxx Whole Loan and the making of payments to the
"Noteholders" in accordance with Sections 3 and 4 of the Sawgrass Xxxxx
Intercreditor Agreement; (ii) the respective rights and obligations of the
"Lenders" under the Arundel Xxxxx Intercreditor Agreement, including with
respect to the allocation of collections on or in respect of the Arundel Xxxxx
Xxxx Passu Whole Loan and the making of payments to the "Lenders" in accordance
with Sections 1(a) and 1(b) of the Arundel Xxxxx Intercreditor Agreement; (iii)
the respective rights and obligations of each of the "Holders" under the Xxxxx
Xxxxxx Building Intercreditor Agreement, including with respect to the
allocation of collections on or in respect of the Xxxxx Xxxxxx Building A/B
Whole Loan and the making of payments to each of the "Holders" in accordance
with Sections 3 and 4 of the Xxxxx Xxxxxx Building Intercreditor Agreement; (iv)
the respective rights and obligations of each of the "Holders" under the Green
Oak Village Place Intercreditor Agreement, including with respect to the
allocation of collections on or in respect of the Green Oak Village Place A/B
Whole Loan and the making of payments to each of the "Holders" in accordance
with Sections 3 and 4 of the Green Oak Village Place Intercreditor Agreement;
(v) the respective rights and obligations of each of the "Holders" under the
West Hartford Portfolio Intercreditor Agreement, including with respect to the
allocation of collections on or in respect of the West Hartford Portfolio A/B
Whole Loan and the making of payments to each of the "Holders" in accordance
with Sections 3 and 4 of the West Hartford Portfolio Intercreditor Agreement;
(vi) the respective rights and obligations of the "Lenders" under the CVS
Portfolio Louisiana Intercreditor Agreement, including with respect to the
allocation of collections on or in respect of the CVS Portfolio Louisiana Pari
Passu Whole Loan and the making of payments to the "Lenders" in accordance with
Sections 1(a) and 1(b) of the CVS Portfolio Louisiana Intercreditor Agreement;
(vii) the respective rights and obligations of the "Lenders" under the CVS
Portfolio Texas Intercreditor Agreement, including with respect to the
allocation of collections on or in respect of the CVS Portfolio Texas Pari Passu
Whole Loan and the making of payments to the "Lenders" in accordance with
Sections 1(a) and 1(b) of the CVS Portfolio Texas Intercreditor Agreement; and
(viii) the respective rights and obligations of the "Lenders" under the CVS -
Gulfport Intercreditor Agreement, including with respect to the allocation of
collections on or in respect of the CVS - Gulfport Pari Passu Whole Loan and the
making of payments to the "Lenders" in accordance with Sections 1(a) and 1(b) of
the CVS - Gulfport Intercreditor Agreement.
Unless otherwise expressly provided for in the related Intercreditor
Agreement, if, at such time as a Mortgage Loan included in a Serviced Whole Loan
shall no longer be part of the Trust Fund, a separate servicing agreement with
respect to such Serviced Whole Loan has not been entered into, then, until such
time as a separate servicing agreement is entered into and any required rating
confirmation is obtained, and notwithstanding that such Mortgage Loan is no
longer part of the Trust Fund, the Master Servicer and, if applicable, the
Special Servicer shall continue to service such Serviced Whole Loan or any
related REO Property, as the case may be, under this Agreement as if it were a
separate servicing agreement, for the benefit of the parties under the related
Intercreditor Agreement, with: (i) such Serviced Whole Loan and the related
Mortgaged Property constituting the sole assets thereunder; (ii) references to
the "Trustee", "Trust" and "Certificateholders" (or any sub-group thereof) being
construed to refer to the new "Note A Holder" or its equivalent under the
related Intercreditor Agreement, as applicable; and (iii) references to the
"Directing Certificateholder" or its equivalent being construed to refer to the
"Controlling Holder", "Lead Lender" or its respective equivalent under the
related Intercreditor Agreement, as applicable; provided, however, from and
after the date that such Mortgage Loan is no longer part of the Trust Fund and
until the servicing and administration of such Serviced Whole Loan is to be
governed by a separate servicing agreement and not by this Agreement, and
notwithstanding any other provision hereof: (i) no P&I Advances shall be made by
the Master Servicer, Special Servicer or the Trustee in respect of such Mortgage
Loan and (ii) the holders of such Serviced Whole Loan shall be solely
responsible for all fees, costs, expenses, liabilities, indemnities and other
amounts payable or reimbursable to any Person in respect of such Mortgage Loan
and any related REO Property and in no event shall any such fees, costs,
expenses, liabilities, indemnities, or other amounts be payable out of the
Mortgage Pool or any collections relating thereto (except to the extent accrued
and unpaid while such Mortgage Loan was included as part of the Trust Fund).
With respect to a Serviced Whole Loan, subject to any express provision
contained in the related Intercreditor Agreement to the contrary, nothing herein
shall be deemed to override the provisions of such Intercreditor Agreement with
respect to the rights of the Companion Loan Holder(s) thereunder. With respect
to the servicing and administration duties and obligations with respect to a
Serviced Whole Loan, in the event of any inconsistency between the provisions of
an Intercreditor Agreement and the provisions of this Agreement, or as to any
matter on which such Intercreditor Agreement is silent or makes reference to
this Agreement, this Agreement shall govern.
Notwithstanding anything herein to the contrary, the parties hereto
acknowledge and agree that the Master Servicer's obligations and
responsibilities hereunder and the Master Servicer's authority with respect to
each Non-Serviced Mortgage Loan is limited by and subject to the terms of the
related Intercreditor Agreement and the rights of the related Non-Serviced Loan
Master Servicer and the related Non-Serviced Loan Special Servicer with respect
thereto under the related Non-Serviced Loan Servicing Agreement. The Master
Servicer shall use reasonable best efforts consistent with the Servicing
Standard to enforce the rights of the Trustee, as holder of a Non-Serviced
Mortgage Loan, under the related Non-Serviced Loan Intercreditor Agreement and
the related Non-Serviced Loan Servicing Agreement. The Master Servicer shall
take such actions as it shall deem reasonably necessary to facilitate the
servicing of each Non-Serviced Mortgage Loan by the related Non-Serviced Loan
Master Servicer and the related Non-Serviced Loan 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
such Non-Serviced Loan Master Servicer or such Non-Serviced Loan Special
Servicer under such Non-Serviced Loan Servicing Agreement. The Trustee, on
behalf of the Certificateholders, hereby assumes the obligations of: (i) the
"Sawgrass Xxxxx Note A-5 Holder" under the Sawgrass Xxxxx Intercreditor
Agreement (other than with respect to the representations and warranties of such
Sawgrass Xxxxx Note A-5 Holder); (ii) the "Arundel Xxxxx Note A-2 Holder" under
the Arundel Xxxxx Intercreditor Agreement (other than with respect to the
representations and warranties of such Arundel Xxxxx Note A-2 Holder); (iii) the
"CVS Portfolio Louisiana Note A-2 Holder" under the CVS Portfolio Louisiana
Intercreditor Agreement (other than with respect to the representations and
warranties of such CVS Portfolio Louisiana Note A-2 Holder); (iv) the "CVS
Portfolio Texas Note A-2 Holder" under the CVS Portfolio Texas Intercreditor
Agreement (other than with respect to the representations and warranties of such
CVS Portfolio Texas Note A-2 Holder); and (v) the "CVS - Gulfport Note A-2
Holder" under the CVS - Gulfport Intercreditor Agreement (other than with
respect to the representations and warranties of such CVS- Gulfport Note A-2
Holder); provided that the Master Servicer, on behalf of the Trustee, will
perform any servicing-related obligations assigned therein to such Non-Serviced
Loan Noteholders.
The parties hereto acknowledge that each Non-Serviced Mortgage Loan
is subject to the terms and conditions of the related Intercreditor Agreement
and further acknowledge that, pursuant to such Intercreditor Agreement: (i) such
Non-Serviced Mortgage Loan is to be serviced and administered by the related
Non-Serviced Loan Master Servicer in accordance with the related Non-Serviced
Loan Servicing Agreement and (ii) in the event that (A) the related Non-Serviced
Companion Loan is no longer part of the trust fund established under the
Non-Serviced Loan Servicing Agreement and (B) the Non-Serviced Mortgage Loan is
included in the Trust Fund, then, as set forth in the related Intercreditor
Agreement, such Non-Serviced Mortgage Loan shall continue to be serviced in
accordance with the applicable provisions of the related Non-Serviced Loan
Servicing Agreement, with each of the related Non-Serviced Loan Master Servicer
and the related Non-Serviced Loan 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 related Non-Serviced Loan
Servicing Agreement) until such time as a new servicing agreement has been
agreed to by the parties to the related 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
related Intercreditor Agreement, the Trust Fund shall be responsible for a
proportionate share of reimbursement for any "Nonrecoverable Servicing Advances"
(as defined in the related Non-Serviced Loan Servicing Agreement and together
with interest thereon, as set forth in the related Non-Serviced Loan Servicing
Agreement) and any "Additional Trust Fund Expenses" (as defined in the related
Non-Serviced Loan Servicing Agreement) that relates exclusively to the servicing
of such Non-Serviced Mortgage Loan. In this regard,
(i) if the related Non-Serviced Loan Servicing Agreement permits the
related Non-Serviced Loan Master Servicer, the related Non-Serviced Loan
Special Servicer or the related Non-Serviced Loan Trustee to seek
reimbursement for such amounts out of general collections in the trust
fund created pursuant to such Non-Serviced Loan Servicing 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 related Non-Serviced Loan Servicing Agreement does not
permit such parties to seek reimbursement for such amounts out of general
collections in the trust fund created pursuant to such Non-Serviced Loan
Servicing 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 related Non-Serviced Loan Master Servicer and the related
Non-Serviced Loan Trustee of the issuance of the Certificates and the
securitization of each Non-Serviced 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 Servicing Agreement, the related Non-Serviced Loan Master
Servicer is obligated to make servicing advances with respect to the related
Non-Serviced Mortgage Loan. The related Non-Serviced Loan Master Servicer shall
be entitled to reimbursement for related Non-Serviced Loan Nonrecoverable
Servicing Advances (with any accrued and unpaid interest thereon provided for
under the related Non-Serviced Loan Servicing Agreement) in the manner set forth
in the related Non-Serviced Loan 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 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 Certificate Administrator, 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 Certificate Administrator, 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 each Non-Serviced Loan Master Servicer and to each
Non-Serviced Loan Trustee stating that, as of the Closing Date, the Trustee is
the holder of the related Non-Serviced Mortgage Loan and directing such
Non-Serviced Loan 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 such Non-Serviced Mortgage Loan under the related
Intercreditor Agreement and the related Non-Serviced Loan Servicing Agreement.
The Master Servicer shall, on the day of receipt thereof, deposit into the
Certificate Account all amounts received with respect to each Non-Serviced
Mortgage Loan, each Mortgaged Property related to a Non-Serviced Mortgage Loan
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, Interest Reserve
Account and Serviced Whole Loan Custodial Account.
(a) The Master Servicer shall segregate and hold all funds collected
and received by it in connection with the Mortgage Pool separate and apart from
its own funds and general assets. The Master Servicer shall establish and
maintain one or more accounts (collectively, the "Certificate Account"), held on
behalf of the Trustee in trust for the benefit of the Certificateholders. The
Certificate Account shall be an Eligible Account. The Master Servicer shall
deposit or cause to be deposited into the Certificate Account, within one
Business Day of receipt (in the case of payments by Mortgagors or other
collections on or in respect of the Mortgage Loans) or as otherwise required
hereunder, the following payments and collections received or made by or on
behalf of it (and, with respect to any Non-Serviced Loan, to the extent received
pursuant to the related Intercreditor Agreement) subsequent to the Cut-off Date
(other than in respect of principal, interest, Escrow Payments and any other
amounts due and payable on the Mortgage Loans on or before the Cut-off Date,
which payments shall be delivered promptly to the 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) the Interest Deposit Amount received from the Depositor
pursuant to Section 2.01(b);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 a Whole Loan or any related REO Property (other than
Liquidation Proceeds derived from the sale of the related Mortgage Loan pursuant
to Section 3.18 to or through the related Note B Holder pursuant to the related
Intercreditor Agreement) shall be deposited into the related Serviced Whole Loan
Custodial Account, and, in any such case, shall thereafter be transferred as
provided in Section 3.05(f).
The foregoing requirements for deposit into the Certificate Account
shall be exclusive. Without limiting the generality of the foregoing, actual
payments from Mortgagors in the nature of Escrow Payments, Reserve Funds, late
payment charges, assumption fees, assumption application fees, earnout fees,
extension fees, modification fees, charges for beneficiary statements or demands
and amounts collected for checks returned for insufficient funds, need not be
deposited by the Master Servicer in the Certificate Account. The Master Servicer
shall promptly deliver to the Special Servicer any of the foregoing items
received by it, if and to the extent that such items constitute Additional
Special Servicing Compensation payable to the Special Servicer. If the Master
Servicer shall deposit into the Certificate Account any amount not required to
be deposited therein, it may at any time withdraw such amount from the
Certificate Account, any provision herein to the contrary notwithstanding.
Upon receipt of any of the amounts described in clauses (i) through
(iv) and (viii) of this Section 3.04(a) with respect to any Serviced Loan (for
the avoidance of doubt, not including any REO Loan), the Special Servicer shall
promptly, but in no event later than one Business Day after receipt of available
funds, remit such amounts to the Master Servicer for deposit into the
Certificate Account in accordance with the second preceding paragraph, unless
the Special Servicer determines, consistent with the Servicing Standard, that a
particular item should not be deposited because of a restrictive endorsement.
Any such amounts received by the Special Servicer with respect to a REO Property
(other than a REO Property related to a Whole Loan) shall be deposited by the
Special Servicer into the REO Account and remitted to the Master Servicer for
deposit into the Certificate Account pursuant to Section 3.16(c). With respect
to any such amounts paid by check to the order of the Special Servicer, the
Special Servicer shall endorse such check to the order of the Master Servicer
unless the Special Servicer determines, consistent with the Servicing Standard,
that a particular item cannot be so endorsed and delivered because of a
restrictive endorsement.
(b) The Certificate Administrator 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)
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 Certificate
Administrator, 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 Certificate Administrator has not
received the Master Servicer Remittance Amount, the Certificate Administrator
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
Certificate Administrator 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 Certificate Administrator.
In addition, the Master Servicer shall, as and when required
hereunder, deliver to the Certificate Administrator 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 Certificate Administrator shall, upon receipt, deposit into the
Distribution Account any and all amounts received by the Trustee 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 Certificate Administrator shall establish and maintain
the REMIC I Distribution Account, as a sub-account of the Distribution Account,
in the name of the Certificate Administrator on behalf of the Trustee, in trust
for the benefit of the Certificateholders (other than the 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 Certificate Administrator
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 Certificate Administrator shall establish and maintain the
REMIC II Distribution Account, as a sub-account of the Distribution
Account, in the name of the Certificate Administrator on behalf 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 Certificate Administrator shall
withdraw or be deemed to withdraw from the REMIC II Distribution Account
the amount of the Available Distribution Amount (including P&I Advances)
and Prepayment Premiums to be distributed in respect of the applicable
REMIC II Regular Certificates pursuant to Section 4.01(b) and Section
4.01(c)(i) on such date.
(iii) [RESERVED].
(iv) The Certificate Administrator shall establish and maintain one
or more accounts or sub-accounts (collectively, the "Excess Liquidation
Proceeds Account") in the name of the Certificate Administrator on behalf
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
Certificate Administrator for deposit into the Excess Liquidation Proceeds
Account all Excess Liquidation Proceeds received during the Collection
Period ending on the Business Day prior to such Master Servicer Remittance
Date. On any Distribution Date, amounts held in the Excess Liquidation
Proceeds Account that exceed amounts reasonably required to offset future
Realized Losses as determined by the Special Servicer with the consent of
the Directing Certificateholder shall be distributed to the Holders of the
Class R-I Certificates.
(v) The Certificate Administrator shall establish and maintain one
or more accounts or sub-accounts (collectively, the "Excess Interest
Distribution Account"), in the name of the Certificate Administrator on
behalf 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 Certificate Administrator 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.
(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 Excess
Interest Distribution Account and the Excess Liquidation Proceeds Account shall
be established at the Corporate Trust Office of the Certificate Administrator as
of the Closing Date, and the Certificate Administrator 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 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
Serviced Whole Loan Custodial Accounts in which the Master Servicer shall
deposit or cause to be deposited within one Business Day of receipt (in the case
of payments by Mortgagors or other collections on or in respect of a Serviced
Whole Loan) or as otherwise required hereunder, the following payments and
collections received or made by or on behalf of it subsequent to the Cut-off
Date (other than in respect of principal, interest and any other amounts due and
payable on such Serviced Whole Loan on or before the Cut-off Date, which
payments shall be held as provided in the related Intercreditor Agreement):
(i) all payments, from whatever source, or transfers from a
debt service reserve account, on account of principal, including
Principal Prepayments, on such Serviced Whole Loan;
(ii) all payments, from whatever source, or transfers from a
debt service reserve account, on account of interest on such
Serviced Whole Loan;
(iii) all Prepayment Premiums received in respect of such
Serviced Whole Loan;
(iv) all payments, Insurance Proceeds, Condemnation Proceeds
and Liquidation Proceeds received in respect of such Serviced Whole
Loan, together with any amounts representing recoveries of
Workout-Delayed Reimbursement Amounts or Nonrecoverable Advances in
respect of the related Serviced Whole Loan;
(v) any amounts required to be deposited by the Master
Servicer pursuant to Section 3.06 in connection with losses incurred
with respect to Permitted Investments of funds held in such Serviced
Whole Loan Custodial Account;
(vi) any amounts required to be deposited by the Master
Servicer or the Special Servicer pursuant to Section 3.07(b) in
connection with losses with respect to such Serviced Whole Loan
resulting from a deductible clause in a blanket or master single
insurance policy;
(vii) any amounts required to be transferred from the related
REO Account pursuant to Section 3.16(c);
(viii) any amounts representing payments made by Mortgagors
that are allocable to cover items in respect of which Servicing
Advances have been made; and
(ix) insofar as they do not constitute Escrow Payments, any
amounts paid by the related Mortgagor with respect to the related
Serviced Whole Loan specifically to cover items for which a
Servicing Advance has been made or that represent a recovery of
property protection expenses from a Mortgagor.
The foregoing requirements for deposit into the Serviced Whole Loan
Custodial Accounts shall be exclusive. Without limiting the generality of the
foregoing, actual payments from Mortgagors in the nature of Escrow Payments,
Reserve Funds, assumption fees, assumption application fees, earnout fees,
extension fees, modification fees, charges for beneficiary statements or demands
and amounts collected for checks returned for insufficient funds, need not be
deposited by the Master Servicer in the Serviced Whole Loan Custodial Accounts.
The Master Servicer shall promptly deliver to the Special Servicer any of the
foregoing items received by it, if and to the extent that such items constitute
Additional Special Servicing Compensation payable to the Special Servicer. If
the Master Servicer shall deposit into any Serviced Whole Loan Custodial Account
any amount not required to be deposited therein, it may at any time withdraw
such amount from such Serviced Whole Loan Custodial Account, any provision
herein to the contrary notwithstanding.
Notwithstanding the foregoing or any other provision to the contrary
in this Agreement, the Master Servicer may maintain the Certificate Account and
the respective Serviced Whole Loan Custodial Accounts as multiple separate
sub-accounts of a single Eligible Account; provided that: (i) all deposits into
and withdrawals from such single Eligible Account shall be made in the same
manner as would be the case if the Certificate Account and the respective
Serviced Whole Loan Custodial Accounts were maintained as multiple separate
accounts; (ii) all distributions on the Certificates will be calculated and made
in the same manner as would be the case if the Certificate Account and the
respective Serviced Whole Loan Custodial Accounts were maintained as multiple
separate accounts; (iii) the Master Servicer shall make credits and debits to
those multiple sub-accounts in a manner consistent with the provisions of this
Agreement governing deposits and withdrawals of funds to and from the
Certificate Account and the respective Serviced Whole Loan Custodial Accounts,
respectively; (iv) the Master Servicer's maintaining the Certificate Account and
the respective Serviced Whole Loan Custodial Accounts as multiple separate
sub-accounts of a single Eligible Account (as opposed to in the form of multiple
separate Eligible Accounts) shall not adversely affect any of the
Certificateholders or any Companion Loan Holder (if a Whole Loan is affected);
and (v) such single Eligible Account shall be entitled substantially as follows:
"Bank of America, National Association, as Master Servicer, in trust for the
registered holders of Banc of America Commercial Mortgage Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-5, and the respective Companion
Loan Holder, as their interests may appear, Certificate/Custodial Account".
Upon receipt of any of the amounts described in clauses (i) through
(iv) and (viii) of this Section 3.04(e) with respect to such Whole Loan (for the
avoidance of doubt, not including any REO Loan), the Special Servicer shall
promptly, but in no event later than one Business Day after receipt of available
funds, remit such amounts to the Master Servicer for deposit into the applicable
Serviced Whole Loan Custodial Account in accordance with the second preceding
paragraph, unless the Special Servicer determines, consistent with the Servicing
Standard, that a particular item should not be deposited because of a
restrictive endorsement. Any such amounts received by the Special Servicer with
respect to a REO Property (other than a REO Property that is not related to a
Whole Loan) shall be deposited by the Special Servicer into the related REO
Account and remitted to the Master Servicer for deposit into the related
Serviced Whole Loan Custodial Account pursuant to Section 3.16(c). With respect
to any such amounts paid by check to the order of the Special Servicer, the
Special Servicer shall endorse such check to the order of the Master Servicer
unless the Special Servicer determines, consistent with the Servicing Standard,
that a particular item cannot be so endorsed and delivered because of a
restrictive endorsement.
Funds in a Serviced Whole Loan Custodial Account may be invested
only in Permitted Investments in accordance with the provisions of Section 3.06.
The Master Servicer shall give notice to the Trustee, the Certificate
Administrator, the Special Servicer, the Depositor and the related Companion
Loan Holder, of the location of each Serviced Whole Loan Custodial Account as of
the Closing Date and of the new location of a Serviced Whole Loan Custodial
Account prior to any change thereof.
(f) The Master Servicer shall establish and maintain the Interest
Reserve Account in trust for the benefit of the Certificateholders. The Master
Servicer is hereby authorized to make deposits in and withdrawals from the
Interest Reserve Account, in accordance with the terms of this Agreement. The
Interest Reserve Account shall be maintained as a segregated account separate
from other accounts.
(g) If any Loss of Value Payments are received in connection with a
Material Defect or Material Breach, as the case may be, pursuant to or as
contemplated by Section 2.03(i), the Special Servicer shall establish and
maintain one or more non-interest bearing accounts (collectively, the "Loss of
Value Reserve Fund") to be held in trust for the benefit of the
Certificateholders, for purposes of holding such Loss of Value Payments. Each
account that constitutes the Loss of Value Reserve Fund shall be an Eligible
Account or a sub-account of an Eligible Account. The Special Servicer shall,
upon receipt, deposit in the Loss of Value Reserve Fund all Loss of Value
Payments received by it.
Section 3.05 Permitted Withdrawals From the Certificate Account, the
Distribution Account, the Serviced Whole Loan Custodial Accounts 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 Certificate Administrator 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 Serviced Whole Loan Custodial Account);
(iii) to pay to the Master Servicer earned and unpaid Master
Servicing Fees in respect of each Mortgage Loan and REO Loan (exclusive of
each Mortgage Loan or REO Loan included in a Whole Loan to the extent such
payment was paid out of collections from the related Serviced Whole Loan
Custodial Account), the Master Servicer's right to payment pursuant to
this clause (iii) with respect to any Mortgage Loan or REO Loan (exclusive
of each Mortgage Loan or REO Loan included in a Whole Loan to the extent
such payment was paid out of collections from the related Serviced Whole
Loan Custodial Account) being payable from, and limited to, amounts
received on or in respect of such Mortgage Loan (whether in the form of
payments, Liquidation Proceeds, Condemnation Proceeds or Insurance
Proceeds) or such REO Loan (whether in the form of REO Revenues,
Liquidation Proceeds or Insurance Proceeds) that are allocable as a
recovery of interest thereon;
(iv) to pay to the Special Servicer, out of general collections on
the Mortgage Loans and any REO Properties, earned and unpaid Special
Servicing Fees in respect of each Specially Serviced Loan and REO Loan,
and to pay to the related Non-Serviced Loan 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 related
Non-Serviced Mortgage Loan;
(v) to pay to the Special Servicer earned and unpaid Workout Fees
and Liquidation Fees to which it is entitled pursuant to, and from the
sources contemplated by Section 3.11(c);
(vi) to reimburse itself, the Special Servicer or the Trustee, as
applicable, for any unreimbursed Servicing Advances made thereby (in each
case, with its own funds), the Master Servicer's, the Trustee's or the
Special Servicer's, as the case may be, respective rights to reimbursement
pursuant to this clause (vi) with respect to any Servicing Advance (other
than Nonrecoverable Servicing Advances, which are reimbursable pursuant to
clause (vii) of this Section 3.05(a)) being limited to (A) payments made
by the related Mortgagor that are allocable to cover the item in respect
of which such Servicing Advance was made, and (B) Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds and, if applicable, REO
Revenues received in respect of the particular Mortgage Loan or REO
Property (exclusive of each Mortgage Loan or REO Loan included in a Whole
Loan or any REO Property securing a Whole Loan to the extent such
reimbursement was paid out of collections from the related Serviced Whole
Loan Custodial Account) as to which such Servicing Advance was made;
(vii) (A) to reimburse the Master Servicer, the Special Servicer or
the Trustee, as applicable, out of general collections on the Mortgage
Loans and any REO Properties (exclusive of any Non-Serviced Loan), for any
unreimbursed Advances made thereby that have been determined to be
Nonrecoverable Advances (provided that amounts may be withdrawn over time
as hereinafter provided) or, subject to the limitations contained in the
following paragraphs of this Section 3.05(a), for any Workout-Delayed
Reimbursement Amounts, and (B) to reimburse the related Non-Serviced Loan
Master Servicer, the related Non-Serviced Loan Special Servicer or the
related Non-Serviced Loan Trustee, as applicable, out of general
collections on the Mortgage Loans and any REO Properties, the Trust Fund's
pro rata share of any related Non-Serviced Loan Nonrecoverable Servicing
Advance;
(viii) to pay the Trustee, the Master Servicer, or the Special
Servicer as applicable, any Advance Interest due and owing thereto out of
Default Charges collected on the Mortgage Pool, as and to the extent
contemplated by Section 3.27;
(ix) (A) to the extent that, during any Collection Period, the
Master Servicer has reimbursed or is reimbursing itself, the Special
Servicer and the Trustee, as applicable, for any unreimbursed Advance
pursuant to clause (ii), (vi) or (vii) of this Section 3.05(a) or pursuant
to Section 3.03, and insofar as payment has not already been made, and the
Default Charges then on deposit in the Certificate Account is not
sufficient to make such payment pursuant to clause (viii) of this Section
3.05(a), to pay the Master Servicer, the Special Servicer or the Trustee,
as the case may be, out of general collections on the Mortgage Loans and
any REO Properties (exclusive of each Mortgage Loan or REO Loan included
in a Whole Loan or any REO Property securing a Whole Loan to the extent
such reimbursement was paid out of collections from the related Serviced
Whole Loan Custodial Account), any related Advance Interest accrued and
payable on the portion of such Advance so reimbursed or being reimbursed;
and (B) at such time as it reimburses the related Non-Serviced Loan Master
Servicer, the related Non-Serviced Loan Special Servicer or the related
Non-Serviced Loan Trustee, as applicable, for the Trust Fund's pro rata
share of any related Non-Serviced Loan Nonrecoverable Servicing Advance,
to pay to such Non-Serviced Loan Master Servicer, such Non-Serviced Loan
Special Servicer and such related Non-Serviced Loan 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 any related Non-Serviced Loan Nonrecoverable Servicing Advance;
(x) to pay any outstanding expense, other than Advance Interest,
that was incurred with respect to any Mortgage Loan or related REO Loan
(exclusive of each Mortgage Loan or REO Loan included in a Whole Loan or
any REO Property securing a Whole Loan to the extent such payment was paid
out of collections from the related Serviced Whole Loan Custodial Account)
and that, if paid from a source other than Default Charges collected on
the Mortgage Pool, would constitute an Additional Trust Fund Expense, such
payment to be made out of Default Charges collected on the Mortgage Pool,
as and to the extent contemplated by Section 3.27;
(xi) to pay itself any items of Additional Master Servicing
Compensation, and to pay to the Special Servicer any items of Additional
Special Servicing Compensation to which it is entitled, in each case from
funds on deposit in the Certificate Account from time to time;
(xii) to pay any unpaid Liquidation Expenses incurred with respect
to any Mortgage Loan or REO Property (exclusive of each Mortgage Loan or
REO Loan included in an A/B Whole Loan or any REO Property securing a
Whole Loan to the extent such payment was paid out of collections from the
related Serviced Whole Loan Custodial Account) such payments to be made:
first, out of payments, Insurance Proceeds, Condemnation Proceeds or
Liquidation Proceeds and, if applicable, REO Revenues received in respect
of such Mortgage Loan or REO Property, as the case may be and then, out of
general collections on other Mortgage Loans and REO Properties (exclusive
of each Mortgage Loan or REO Loan included in a Whole Loan or any REO
Property securing a Whole Loan to the extent such payment was paid out of
collections from the related Serviced Whole Loan Custodial Account);
(xiii) to pay, in accordance with Section 3.11(i), out of general
collections on the Mortgage Loans and any REO Properties (exclusive of
each Mortgage Loan or REO Loan included in a Whole Loan or any REO
Property securing a Whole Loan to the extent such payment was paid out of
collections from the related Serviced Whole Loan Custodial Account),
certain servicing expenses that would, if advanced, constitute
Nonrecoverable Servicing Advances;
(xiv) to pay, out of general collections on the Mortgage Loans and
any REO Properties (exclusive of each Mortgage Loan or REO Loan included
in a Whole Loan or any REO Property securing a Whole Loan to the extent
such payment was paid out of collections from the related Serviced Whole
Loan Custodial Account), costs and expenses incurred by the Trust Fund
pursuant to Section 3.09(c) (other than the costs of environmental
testing, which are to be covered by, and reimbursable as, a Servicing
Advance);
(xv) to pay itself, the Special Servicer, the Depositor, the
Trustee, the Certificate Administrator, or any of their respective
directors, officers, members, managers, employees and agents, as the case
may be, out of general collections on the Mortgage Loans and any REO
Properties any amounts payable to any such Person pursuant to Section
6.03, Section 7.01(b) or Section 8.05(b), as applicable;
(xvi) to pay, out of general collections on the Mortgage Loans and
REO Properties (exclusive of each Mortgage Loan or REO Loan included in a
Whole Loan or any REO Property securing a Whole Loan to the extent such
payment was paid out of collections from the related Serviced Whole Loan
Custodial Account), for the cost of recording this Agreement in accordance
with Section 12.02(a);
(xvii) to pay, out of general collections on the Mortgage Loans and
any REO Properties (exclusive of any such amount arising in respect of
each Mortgage Loan or REO Loan included in a Whole Loan or any REO
Property securing a Whole Loan to the extent such payment was paid out of
collections from the related Serviced Whole Loan Custodial Account), any
reasonable out-of-pocket cost or expense (including the reasonable fees of
tax accountants and attorneys) incurred by the Trustee or the Certificate
Administrator, as applicable, 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, the Certificate Administrator or the Depositor, as the case may
be, any amount specifically required to be paid to such Person at the
expense of the Trust Fund under any provision of this Agreement to which
reference is not made in any other clause of this Section 3.05(a)
(exclusive of any such amount arising in respect of a Mortgage Loan
included in a Whole Loan to the extent such payment was paid out of
collections from the related Serviced Whole Loan Custodial Account), it
being acknowledged that this clause (xviii) shall not be construed to
modify any limitation otherwise set forth in this Agreement on the time at
which any Person is entitled to payment or reimbursement of any amount or
the funds from which any such payment or reimbursement is permitted to be
made and (B) with respect to any Non-Serviced Mortgage Loan, to reimburse
the related Non-Serviced Loan Master Servicer, Non-Serviced Loan Special
Servicer or Non-Serviced Loan Trustee, as applicable for the pro rata
portion of any Additional Trust Fund Expenses (as such term is defined in
the related Non-Serviced Loan 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 Seller, a Controlling Class Certificateholder or any other particular
Person, as the case may be, with respect to each Mortgage Loan (exclusive
of any such amount arising in respect of each Mortgage Loan included in a
Whole Loan to the extent such payment was paid out of collections from the
Serviced Whole Loan Custodial Account), if any, previously purchased or
otherwise removed from the Trust Fund by such Person pursuant to or as
contemplated by this Agreement, all amounts received thereon subsequent to
the date of purchase;
(xx) to transfer Excess Liquidation Proceeds (exclusive of Excess
Liquidation Proceeds received with respect to a Mortgage Loan included the
Whole Loan to the extent such payment was paid out of collections from the
Serviced Whole Loan Custodial Account) to the Excess Liquidation Proceeds
Account in accordance with Section 3.04(c)(iv);
(xxi) to withdraw any amounts deposited in error; and
(xxii) to clear and terminate the Certificate Account at the
termination of this Agreement pursuant to Section 9.01.
If amounts on deposit in the Certificate Account at any particular
time (after withdrawing any portion of such amounts deposited into the
Certificate Account in error) are insufficient to satisfy all payments,
reimbursements and remittances to be made therefrom as set forth in clauses (ii)
through (xx) of this Section 3.05(a), then the corresponding withdrawals from
the Certificate Account shall be made in the following priority and subject to
the following rules: (A) if the payment, reimbursement or remittance is to be
made from a specific source of funds, then such payment, reimbursement or
remittance shall be made from that specific source of funds on a pro rata basis
with any and all other payments, reimbursements and remittances to be made from
such specific source of funds; and (B) if the payment, reimbursement or
remittance can be made from any funds on deposit in the Certificate Account,
then (following any withdrawals made from the Certificate Account in accordance
with the immediately preceding clause (A) of this Section 3.05(a)) such payment,
reimbursement or remittance shall be made from such general funds remaining on a
pro rata basis with any and all other payments, reimbursements or remittances to
be made from such general funds; provided that any reimbursements of Advances in
respect of any particular Mortgage Loan or REO Property out of the Certificate
Account pursuant to any of clauses (ii), (vi) and (vii) of this Section 3.05(a),
and any payments of interest thereon out of the Certificate Account pursuant to
either of clauses (viii) and (ix) of this Section 3.05(a), shall be made (to the
extent of their respective entitlements to such reimbursements and/or payments):
first, to the Trustee and second, pro rata, to the Master Servicer and Special
Servicer.
The Master Servicer shall keep and maintain separate accounting
records, on a loan-by-loan basis (and on a property-by-property basis for REO
Loans) when appropriate, in connection with any withdrawal from the Certificate
Account pursuant to clauses (ii) through (xx) of this Section 3.05(a) sufficient
to determine the amounts attributable to REMIC I.
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 the
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 the preceding paragraph, such increase shall be
allocated first to the principal collections in the Loan Group with respect to
which the Mortgage Loan as to which the related Workout-Delayed Reimbursement
Amount was reimbursed does not belong, and then to the Loan Group with respect
to which the Mortgage Loan as to which the related Workout-Delayed Reimbursement
Amount was reimbursed does belong.
For the avoidance of doubt, notwithstanding anything contained in
this Agreement to the contrary, the right of any Person hereunder to recover
amounts owing with respect to a Whole Loan from the Certificate Account and/or
the related Serviced Whole Loan Custodial Account shall be without duplication.
(b) The Certificate Administrator may, from time to time, make
withdrawals from the REMIC I Distribution Account for any of the following
purposes (the order set forth below not constituting an order of priority for
such withdrawals):
(i) to be deemed to transfer from the REMIC I Distribution Account
to the REMIC II Distribution Account on or before the related Distribution
Date the Available Distribution Amount as provided in Section 4.01(a)(ii)
and Prepayment Premiums to be distributed in respect of the REMIC I
Regular Interests, as contemplated by Section 4.01(a)(i), and to make
distributions to the Class R-I Certificates pursuant to Section
4.01(a)(iii) or Section 9.01, as applicable;
(ii) to pay the Trustee and the Certificate Administrator accrued
and unpaid Trustee Fees and Certificate Administrator Fees, as applicable,
pursuant to Section 8.05(a) and to reimburse the Trustee or the
Certificate Administrator, as applicable, 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 the Certificate Administrator, as
applicable, 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 or the Certificate
Administrator, as applicable, as contemplated by Section 12.01(a) or
12.01(d) in connection with any amendment to this Agreement requested by
the Trustee or the Certificate Administrator, as applicable, 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 or the Certificate Administrator, as applicable, 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 Certificate Administrator, 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 Certificate Administrator 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 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; 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 Certificate Administrator 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 Certificate Administrator
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 Certificate Administrator, the Depositor, the
Master Servicer and the Special Servicer shall in all cases have a right prior
to the Certificateholders to any particular funds on deposit in the Certificate
Account and the Distribution Account from time to time for the reimbursement or
payment of compensation, Advances (with interest thereon at the Reimbursement
Rate) and their respective expenses hereunder, but only if and to the extent
such compensation, Advances (with interest) and expenses are to be reimbursed or
paid from such particular funds on deposit in the Certificate Account or the
Distribution Account pursuant to the express terms of this Agreement.
(f) The Master Servicer may (and, with respect to clause (i),
shall), from time to time, make withdrawals from each Serviced Whole Loan
Custodial Account, for any of the following purposes (the order set forth below
not constituting an order of priority for such withdrawals):
(i) to make remittances each month no later than the Master
Servicer Remittance Date, in an aggregate amount of immediately
available funds equal to the applicable portion of the Serviced
Whole Loan Remittance Amount, to the related Companion Loan Holder
and to the Certificate Account for the benefit of the Trust (as
holder of the related Mortgage Loan or any related REO Loan), in
accordance with the related Intercreditor Agreement; provided,
however, any Liquidation Proceeds relating to any repurchase of the
Companion Loan related to a Serviced Whole Loan by the related
seller thereof shall be remitted solely to the related Companion
Loan Holder and Liquidation Proceeds relating to the repurchase of a
Mortgage Loan related to a Serviced Whole Loan by the Mortgage Loan
Seller shall be remitted solely to the Certificate Account; provided
that any Liquidation Proceeds related to a sale pursuant to Section
3.18 or pursuant to the related Intercreditor Agreement of a
Mortgage Loan included in a Serviced Whole Loan shall be deposited
directly into the Certificate Account and applied solely to pay
expenses relating to that Mortgage Loan and to the Available
Distribution Amount, and any Liquidation Proceeds related to a sale
pursuant to Section 3.18 of a Companion Loan shall be deposited into
the related Serviced Whole Loan Custodial Account and applied solely
to pay expenses relating to such Companion Loan and to pay amounts
due to the related Companion Loan Holder;
(ii) to reimburse the Master Servicer or the Trustee, as
applicable, for xxxxxxxxxxxx X&X Advances made with respect to such
Mortgage Loan or, in the case of the Trustee, with respect to the
related Mortgage Loan, the Master Servicer's and the Trustee's, as
the case may be, respective rights to reimbursement pursuant to this
clause (ii) with respect to any P&I Advance (other than
Nonrecoverable P&I Advances, which are reimbursable pursuant to
clause (vii) of this Section 3.05(f)) or principal and/or interest
advance being limited to amounts that represent Late Collections of
interest and principal received in respect of the particular
Serviced Whole Loan as to which such P&I Advance or principal and/or
interest advance was made (net of related Master Servicing Fees
and/or Workout Fees);
(iii) to pay to the Master Servicer earned and unpaid Master
Servicing Fees in respect of such Serviced Whole Loan and related
REO Loan, the Master Servicer's right to payment pursuant to this
clause (iii) with respect to any Serviced Whole Loan or REO Loan
being payable from, and limited to, amounts received on or in
respect of such Serviced Whole Loan (whether in the form of
payments, Liquidation Proceeds, Condemnation Proceeds or Insurance
Proceeds) or such REO Loan (whether in the form of REO Revenues,
Liquidation Proceeds or Insurance Proceeds) that are allocable as a
recovery of interest thereon;
(iv) to pay to the Special Servicer, out of general
collections on such Serviced Whole Loan and related REO Properties,
earned and unpaid Special Servicing Fees in respect of such Serviced
Whole Loan and related REO Properties;
(v) to pay to the Special Servicer earned and unpaid Workout
Fees and Liquidation Fees to which it is entitled pursuant to, and
from the sources contemplated by, Section 3.11(c);
(vi) to reimburse itself, the Special Servicer or the Trustee,
as applicable, for any unreimbursed Servicing Advances with respect
to such Serviced Whole Loan or related REO Property made thereby,
the Master Servicer's, the Special Servicer's and the Trustee's, as
the case may be, respective rights to reimbursement pursuant to this
clause (vi) with respect to any Servicing Advance (other than
Nonrecoverable Servicing Advances, which are reimbursable pursuant
to clause (vii) of this Section 3.05(f)) being limited to (A)
payments made by the related Mortgagor that are allocable to cover
the item in respect of which such Servicing Advance was made, and
(B) Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds
and, if applicable, REO Revenues received in respect of such
Serviced Whole Loan or REO Property as to which such Servicing
Advance was made;
(vii) to reimburse the Master Servicer, the Special Servicer
or the Trustee, as applicable, out of general collections on such
Serviced Whole Loan or REO Property, for any unreimbursed related
Advances made thereby that have been determined to be Nonrecoverable
Advances;
(viii) to pay the Trustee, the Master Servicer, or the Special
Servicer as applicable, any Advance Interest due and owing thereto
out of Default Charges collected on such Serviced Whole Loan the
portion of Default Charges allocated thereto in the related
Intercreditor Agreement, as and to the extent contemplated by
Section 3.27;
(ix) to the extent that, during any Collection Period, the
Master Servicer has reimbursed or is reimbursing itself, the Special
Servicer or the Trustee, as applicable, for any unreimbursed Advance
pursuant to clause (ii), (vi) or (vii) of this Section 3.05(f) or
pursuant to Section 3.03, and insofar as payment has not already
been made, and the Default Charges then on deposit in such Serviced
Whole Loan Custodial Account is not sufficient to make such payment
pursuant to clause (viii) of this Section 3.05(f), to pay the Master
Servicer, the Special Servicer or the Trustee, as the case may be,
out of general collections on such Serviced Whole Loan and related
REO Property, any related Advance Interest accrued and payable on
the portion of such Advance so reimbursed or being reimbursed;
(x) to pay any outstanding expense, other than Advance
Interest, that was incurred with respect to such Serviced Whole Loan
and that, if paid from a source other than Default Charges collected
on such Serviced Whole Loan, would constitute an Additional Trust
Fund Expense, such payment to be made out of Default Charges
collected on such Serviced Whole Loan, as and to the extent
contemplated by Section 3.27;
(xi) to pay itself any items of Additional Master Servicing
Compensation, and to pay to the Special Servicer any items of
Additional Special Servicing Compensation to which it is entitled,
in each case with respect to such Serviced Whole Loan from funds
collected on such Serviced Whole Loan that are on deposit in such
Serviced Whole Loan Custodial Account from time to time;
(xii) to pay any unpaid Liquidation Expenses incurred with
respect to such Serviced Whole Loan or REO Property, such payments
to be made, first, out of payments, Insurance Proceeds, Condemnation
Proceeds or Liquidation Proceeds and, if applicable, REO Revenues
received in respect of such Serviced Whole Loan or REO Property, as
the case may be, and then, out of general collections on such
Serviced Whole Loan or REO Property;
(xiii) to pay, in accordance with Section 3.11(i), out of
general collections on such Serviced Whole Loan and REO Property,
certain servicing expenses with respect to such Serviced Whole Loan
that would, if advanced, constitute Nonrecoverable Servicing
Advances;
(xiv) to pay, out of general collections on such Serviced
Whole Loan and REO Property, costs and expenses incurred by the
related Companion Loan Holder pursuant to Section 3.09(c) (other
than the costs of environmental testing, which are to be covered by,
and reimbursable as, a Servicing Advance);
(xv) to pay itself, the Special Servicer, the Depositor, the
Trustee, the Certificate Administrator or any of their respective
directors, officers, members, managers, employees and agents, as the
case may be, out of general collections on such Serviced Whole Loan
or REO Property, any amounts payable to any such Person pursuant to
Section 6.03, Section 7.01(b) or Section 8.05(b), as applicable,
with respect to such Serviced Whole Loan;
(xvi) [RESERVED];
(xvii) to pay, out of general collections on such Serviced
Whole Loan and REO Property, any reasonable out-of-pocket cost or
expense (including the reasonable fees of tax accountants and
attorneys) incurred by the Trustee or the Certificate Administrator,
as applicable, pursuant to Section 3.17(b) in connection with
providing advice to the Special Servicer with respect to such
Serviced Whole Loan;
(xviii) to pay to the Master Servicer, the Special Servicer,
the Trustee, the Certificate Administrator or the Depositor, as the
case may be, to the extent that such amount is related to the
Mortgage Loan included in such Serviced Whole Loan, any amount
specifically required to be paid to such Person at the expense of
the Trust Fund under any provision of this Agreement to which
reference is not made in any other clause of this Section 3.05(f),
it being acknowledged that this clause (xviii) shall not be
construed to modify any limitation otherwise set forth in this
Agreement on the time at which any Person is entitled to payment or
reimbursement of any amount or the funds from which any such payment
or reimbursement is permitted to be made;
(xix) to pay the Master Servicer, the Special Servicer, the
Mortgage Loan Seller, a Controlling Class Certificateholder or any
other particular Person, as the case may be, (i) with respect to the
Mortgage Loan related to such Serviced Whole Loan, if any,
previously purchased or otherwise removed from the Trust Fund by
such Person pursuant to or as contemplated by this Agreement or (ii)
with respect to any Companion Loan related to such Serviced Whole
Loan purchased by such Person pursuant to or as contemplated by the
related Intercreditor Agreement or this Agreement, all amounts
received thereon subsequent to the date of purchase, to the extent
payable in respect of such Loan;
(xx) to transfer Excess Liquidation Proceeds related to the
Mortgage Loan included in such Serviced Whole Loan to the Excess
Liquidation Proceeds Account in accordance with Section 3.04(e);
(xxi) to withdraw any amounts deposited into such Serviced
Whole Loan Custodial Account in error; and
(xxii) to clear and terminate such Serviced Whole Loan
Custodial Account at the termination of this Agreement pursuant to
Section 9.01.
If amounts on deposit in such Serviced Whole Loan Custodial Account
at any particular time (after withdrawing any portion of such amounts deposited
into such Serviced Whole Loan Custodial Account in error) are insufficient to
satisfy all payments, reimbursements and remittances to be made therefrom as set
forth in clauses (ii) through (xx) of this Section 3.05(f), then the
corresponding withdrawals from such Serviced Whole Loan Custodial Account shall
be made in the following priority and subject to the following rules: (A) if the
payment, reimbursement or remittance is to be made from a specific source of
funds, then such payment, reimbursement or remittance shall be made from that
specific source of funds on a pro rata basis with any and all other payments,
reimbursements and remittances to be made from such specific source of funds;
and (B) if the payment, reimbursement or remittance can be made from any funds
on deposit in such Serviced Whole Loan Custodial Account, then (following any
withdrawals made from such Serviced Whole Loan Custodial Account in accordance
with the immediately preceding clause (A) of this paragraph) such payment,
reimbursement or remittance shall be made from such general funds remaining on a
pro rata basis with any and all other payments, reimbursements or remittances to
be made from such general funds; provided that any reimbursements of Advances in
respect of such Serviced Whole Loan or REO Property out of such Serviced Whole
Loan Custodial Account pursuant to any of clauses (ii), (vi) and (vii) of this
Section 3.05(f), and any payments of interest thereon out of such Serviced Whole
Loan Custodial Account pursuant to either of clauses (viii) and (ix) of this
Section 3.05(f), shall be made (to the extent of their respective entitlements
to such reimbursements and/or payments): first, to the Trustee; and second, pro
rata, to the Master Servicer and Special Servicer; provided, further with
respect to a Serviced Whole Loan that is an A/B Loan, any such reimbursements
shall be made from funds otherwise allocable to the related Note B prior to
being reimbursed from funds allocable to the related Mortgage Loan.
The Master Servicer shall also be entitled to make withdrawals from
time to time, from the Serviced Whole Loan Custodial Account of amounts
necessary for the payments or reimbursement of amounts required to be paid with
respect to a Securitized Companion Loan (included in a Serviced Whole Loan) to
the master servicer, the special servicer and the trustee under the related
Securitized Companion Loan 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 Serviced Whole Loan in the time frames set forth
therein.
The Master Servicer and the Special Servicer, as applicable, shall
notify the Trustee and the Certificate Administrator 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 paragraph 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 paragraph, to the
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 paragraph).
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 in
accordance with Section 9.01, all interest then payable thereto, together with
the aggregate Certificate Principal 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 otherwise shall be distributable to the
Holders of the REMIC Residual Certificates on the final Distribution Date.
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 and the REO Account.
(a) The Master Servicer may direct any depository institution
maintaining the Certificate Account, the Servicing Account, the Interest Reserve
Account and each Serviced Whole Loan Custodial Account, the Special Servicer may
direct any depository institution maintaining each REO Account, and the
Certificate Administrator may direct any depository institution maintaining the
REMIC I Distribution Account, the REMIC II Distribution Account, the Excess
Interest Distribution 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. 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 Certificate
Administrator on behalf of the Trustee for the benefit of the Certificateholders
and, in the case of a Permitted Investment in any Investment Account solely
related to a Whole Loan, the related Companion Loan Holder (in its capacity as
such). The Master Servicer (with respect to Permitted Investments of amounts in
the Certificate Account, the Interest Reserve Account, each Serviced Whole Loan
Custodial Account and the Servicing Account) and the Special Servicer (with
respect to Permitted Investments of amounts in each REO Account), on behalf of
the Trustee for the benefit of the Certificateholders and in the case of any
Investment Account solely related to a Whole Loan, the related Companion Loan
Holder, and the Trustee (with respect to the Excess Liquidation Proceeds
Account, the REMIC I Distribution Account, the REMIC II Distribution Account and
the Excess Interest Distribution Account), on behalf of the Certificateholders,
shall (and the Certificate Administrator hereby designates the Master Servicer,
the Special Servicer or itself, as applicable, as the Person that shall) (i) be
the "entitlement holder" of any Permitted Investment that is a "security
entitlement" and (ii) maintain "control" of any Permitted Investment that is
either a "certificated security" or an "uncertificated security". For purposes
of this Section 3.06(a), the terms "entitlement holder", "security entitlement",
"control", "certificated security" and "uncertificated security" shall have the
meanings given such terms in Revised Article 8 (1994 Revision) of the UCC, and
"control" of any Permitted Investment by the Master Servicer or the Special
Servicer shall constitute "control" by a Person designated by, and acting on
behalf of, the Trustee for purposes of Revised Article 8 (1994 Revision) of the
UCC. If amounts on deposit in an Investment Account are at any time invested in
a Permitted Investment payable on demand, the Master Servicer (in the case of
the Certificate Account, the Interest Reserve Account, each Serviced Whole Loan
Custodial Account and the Servicing Account) or the Special Servicer (in the
case of each REO Account) and the Certificate Administrator (in the case of the
Excess Liquidation Proceeds Account, the Excess Interest Distribution Account,
the REMIC I Distribution 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, the Trustee or
the Certificate Administrator, as the case may be, that such Permitted
Investment would not constitute a Permitted Investment in respect of funds
thereafter on deposit in the Investment Account.
(b) Whether or not the Master Servicer directs the investment of
funds in the Certificate Account, the Interest Reserve Account, each Serviced
Whole Loan Custodial Account and the Servicing Account, interest and investment
income realized on funds deposited therein, to the extent of the Net Investment
Earnings, if any, for each such Investment Account for each Collection Period,
shall be for the sole and exclusive benefit of the Master Servicer and shall be
subject to its withdrawal in accordance with Section 3.05(a) or Section 3.05(f),
as applicable. Whether or not the Special Servicer directs the investment of
funds in each REO Account, interest and investment income realized on funds
deposited therein, to the extent of the Net Investment Earnings, if any, for
such Investment Account for each Collection Period, shall be for the sole and
exclusive benefit of the Special Servicer and shall be subject to its withdrawal
in accordance with Section 3.16(b). Whether or not the Certificate Administrator
directs the investment of funds in the Excess Liquidation Proceeds Account, the
Excess Interest Distribution Account, the REMIC I Distribution 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 Certificate Administrator and shall be subject to
withdrawal by the Certificate Administrator. If any loss shall be incurred in
respect of any Permitted Investment on deposit in any Investment Account, the
Master Servicer (in the case of the Interest Reserve Account, the Certificate
Account, each Serviced Whole Loan Custodial Account and the Servicing Account
(with respect to funds invested by the Master Servicer for its own account)),
the Special Servicer (in the case of each REO Account) and the Certificate
Administrator (in the case of the Excess Liquidation Proceeds Account, the
Excess Interest Distribution 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 Certificate Administrator shall
have no liability whatsoever with respect to any such losses, except in respect
to losses incurred in respect of any Permitted Investment on deposit in the
Excess Liquidation Proceeds Account, the Excess Interest Distribution Account,
the REMIC I Distribution 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 Serviced Whole Loan is involved, the related Serviced Whole
Loan Custodial Account, subject to withdrawal pursuant to Section 3.05(a), or
Section 3.05(f), as applicable in the case of amounts received in respect of a
Loan, or in the applicable REO Account, subject to withdrawal pursuant to
Section 3.16(c), in the case of amounts received in respect of a REO Property.
Any cost incurred by the Master Servicer or Special Servicer in maintaining any
such insurance shall not, for purposes hereof, including calculating monthly
distributions to Certificateholders, be added to unpaid principal balance or
Stated Principal Balance of the related Serviced Loan, notwithstanding that the
terms of such Serviced Loan so permit; provided, however, this sentence shall
not limit the rights of the Master Servicer or Special Servicer on behalf of the
Trust or, if a Whole Loan is involved, on behalf of the related Companion Loan
Holder, to enforce any obligations of the related Mortgagor under such Serviced
Loan. Costs to the Master Servicer or Special Servicer of maintaining insurance
policies pursuant to this Section 3.07 shall be paid by and reimbursable to the
Master Servicer or the Special Servicer, as the case may be, as a Servicing
Advance.
If the related loan documents specifically and expressly set forth
terms requiring insurance coverage against terrorist or similar acts for a
Serviced Loan, then the Master Servicer and the Special Servicer shall enforce
the terms of the related loan documents in accordance with the Servicing
Standard, and if the Mortgagor fails to maintain such insurance, such failure
shall constitute a Servicing Transfer Event. To the extent the loan documents do
not set forth specific terms requiring insurance coverage against terrorist or
similar acts and a Serviced Loan (x) requires a Mortgagor to maintain insurance
policies covering some or all of the risks contained in the Additional
Exclusions or (y) in accordance with the Servicing Standard, the Master Servicer
has determined that the loan documents permit the lender to require the
Mortgagor to maintain insurance policies covering some or all the risks
contained in the Additional Exclusions (the covered risks required to be covered
or that the lender has the discretion to require to be covered being referred to
as "Covered Risks"), the Master Servicer shall use reasonable efforts in
accordance with the Servicing Standard to determine whether, upon renewal of the
Mortgagor's property or casualty insurance (including any all risk insurance
policy), any of the Covered Risks are excluded from coverage. If any of the
Covered Risks are determined by the Master Servicer to be excluded from
coverage, the Master Servicer shall request the Mortgagor to either (i) purchase
insurance acceptable to the Master Servicer in accordance with the Servicing
Standard and in accordance with the related loan documents covering such Covered
Risks or (ii) provide a written explanation as to its reasons for failing to
purchase such insurance. Notwithstanding the foregoing, with the written consent
of the Special Servicer in accordance with the Servicing Standard the Master
Servicer may waive the requirement to procure insurance covering any of the
Covered Risks if the Master Servicer determines in accordance with the Servicing
Standard that (1) insurance covering any such Covered Risks is not available at
a commercially reasonable price, or (2) based on information reasonably
available to the Master Servicer, after due inquiry, any such Covered Risks are
at that time not commonly insured against for properties similar to the
Mortgaged Property and located in or around the region in which the Mortgaged
Property is located unless the Stated Principal Balance of the Serviced Loan is
greater than $20,000,000. If the Stated Principal Balance of the Serviced Loan
is greater than $20,000,000, then the Master Servicer must determine that the
circumstances in both clauses (1) and (2) of the immediately preceding sentence
apply prior to waiving the Mortgagor's requirement to procure insurance with
respect to any Covered Risks. If the Special Servicer fails to give a response
to the Master Servicer as referenced in the second preceding sentence within ten
Business Days of the Master Servicer initially notifying the Special Servicer in
writing of such request, the Master Servicer shall promptly notify the Directing
Certificateholder of such failure of the Special Servicer to respond to such
request. If the Directing Certificateholder and/or the Special Servicer have not
responded to the Master Servicer within ten Business Days of the notice
referenced in the immediately preceding sentence, the Master Servicer shall
determine in accordance with the Servicing Standard whether to require (or not
require) the Mortgagor to maintain such insurance; provided, that during the
period that the Special Servicer and/or the Directing Certificateholder are
evaluating such insurance, none of the Master Servicer, the Special Servicer
and/or the Directing Certificateholder shall be liable for any loss related to
its failure to require a Mortgagor to maintain terrorism insurance and shall not
be in default of its obligations hereunder as a result of such failure. If the
Master Servicer requires the Mortgagor to maintain such insurance and the
Mortgagor fails to maintain such insurance, to the extent such insurance is then
reasonably available, the Master Servicer shall then procure such insurance in
accordance with the Servicing Standard and such failure by the Mortgagor shall
constitute a Servicing Transfer Event. For purposes of computing whether the
$20,000,000 threshold described herein is met for a particular Serviced Loan, if
a Serviced Loan is secured by multiple Mortgaged Properties, then the amount
subject to the $20,000,000 threshold shall be the portion of the Stated
Principal Balance of the related Serviced Loan pro rated based on an individual
Mortgaged Property's appraised value as a percentage of the total appraised
value of all of the related Mortgaged Properties.
(b) If the Master Servicer or the Special Servicer shall obtain and
maintain, or cause to be obtained and maintained, a blanket policy or master
force placed policy insuring against hazard losses on all of the Serviced Loans
or REO Properties (other than with respect to any REO Property related to a
Non-Serviced Loan), as applicable, that it is required to service and administer
hereunder, then, to the extent such policy (i) is obtained from a Qualified
Insurer having a financial strength or claims-paying rating no lower than "A"
from Fitch and "A" from S&P or having such other financial strength or
claims-paying ability rating as would not, as confirmed in writing by the
relevant Rating Agency, result in an Adverse Rating Event and (ii) provides
protection equivalent to the individual policies otherwise required, the Master
Servicer or Special Servicer, as the case may be, shall conclusively be deemed
to have satisfied its obligation to cause hazard insurance to be maintained on
the related Mortgaged Properties or REO Properties, as applicable. Such policy
may contain a deductible clause (not in excess of a customary amount), in which
case the Master Servicer or the Special Servicer, as appropriate, shall, if
there shall not have been maintained on the related Mortgaged Property or REO
Property a hazard insurance policy complying with the requirements of Section
3.07(a), and there shall have been one or more losses that would have been
covered by such an individual policy, promptly deposit into the Certificate
Account from its own funds the amount not otherwise payable under the blanket or
master force placed policy in connection with such loss or losses because of
such deductible clause to the extent that any such deductible exceeds the
deductible limitation that pertained to the related Serviced Loan (or, in the
absence of any such deductible limitation, the deductible limitation for an
individual policy that is consistent with the Servicing Standard). The Master
Servicer or the Special Servicer, as appropriate, shall prepare and present, on
behalf of itself, the Trustee and the Certificateholders and, in the case of a
Serviced Whole Loan, the related Companion Loan Holder, claims under any such
blanket or master forced placed policy in a timely fashion in accordance with
the terms of such policy.
(c) Each of the Master Servicer and the Special Servicer shall at
all times during the term of this Agreement (or, in the case of the Special
Servicer, at all times during the term of this Agreement during which Specially
Serviced Loans or REO Properties for which it is responsible exist as part of
the Trust Fund) keep in force with a Qualified Insurer having a financial
strength or claims-paying rating no lower than two rating categories below the
highest rated Certificates outstanding, and in any event no lower than "A" from
Fitch 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 Section 3.08(a)(i)(3)
and Section 3.08 (a)(ii)(3) have been satisfied), unless both the Master
Servicer and the Special Servicer shall have followed the procedures set forth
for those Loans in the manner set forth in the immediately below clauses (i)
through (vi):
(i) The Master Servicer shall not waive any right it has, or grant
any consent that it may otherwise withhold under any related "due-on-sale"
or "due-on-encumbrance" clause (including, but not limited to, making any
determination that the conditions set forth in Section 3.08(a)(i)(3) and
Section 3.08 (a)(ii)(3) have been satisfied) without first obtaining the
consent of the Special Servicer. The Special Servicer's consent shall be
deemed given if the Master Servicer shall have provided the Special
Servicer written notice along with its written recommendation and analysis
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 any
Post CAP A/B Whole Loan that is a Performing Serviced Loan or (b) for any
Specially Serviced Loan that is a Non-Partitioned Loan or a Post CAP A/B
Whole Loan. Consent by the Directing Certificateholder shall be deemed
given if the Special Servicer shall have provided the Directing
Certificateholder written notice of the matter together with all of the
information set forth in the immediately succeeding sentence and the
Directing Certificateholder shall not have responded in writing, via fax
or e-mail within ten Business Days of such request. In connection with the
request set forth above, the Special Servicer shall provide to the
Directing Certificateholder written notice of the matter, a written
explanation of the surrounding circumstances, such additional information
as the Directing Certificateholder shall reasonably request and a request
for approval by the Directing Certificateholder.
(iii) With respect to any A/B Whole Loan: (A) the Master Servicer
with respect to those time periods when such Loan is a Performing Serviced
Loan shall not waive any right that it may have, or grant any consent that
it may otherwise withhold under any related "due-on-sale" or
"due-on-encumbrance" clause without obtaining the consent of the Special
Servicer, which consent shall not be given without the Special Servicer
first obtaining the consent of the related Controlling Holder, and (B) the
Special Servicer with respect to those time periods when either such Loan
is a Specially Serviced Loan shall not waive any right that it may have,
or grant any consent that it may otherwise withhold under any related
"due-on-sale" or "due-on-encumbrance" clause without obtaining the consent
of the related Controlling Holder. Consent by a Controlling Holder shall
be deemed given if the Master Servicer or Special Servicer, as applicable,
shall have provided such Controlling Holder written notice of the matter
together with all of the information set forth in the last sentence of
Section 3.08(a)(ii) and such Controlling Holder shall not have responded
in writing, via fax or email within ten Business Days of such request.
(iv) [RESERVED].
(v) Notwithstanding the foregoing, solely with respect to the
consent or waiver of any "due-on-sale" clause as described in Section
3.08(a), if any Mortgage Loan (other than with respect to any Non-Serviced
Mortgage Loan, which is governed by the related Non-Serviced Loan
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.
(vi) Notwithstanding the foregoing, solely with respect to the
consent or waiver of any "due-on-encumbrance" clause as described in
Section 3.08(a), if any Mortgage Loan (other than with respect to any
Non-Serviced Mortgage Loan, which is governed by the related Non-Serviced
Loan 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).
(vii) In the event that the Master Servicer or Special Servicer
intends or is required, in accordance with the preceding clauses, by the
loan documents or applicable law, to permit the transfer of any Mortgaged
Property, the Master Servicer or the Special Servicer, as the case may be,
may, if consistent with the Servicing Standard, enter into a substitution
of liability agreement, pursuant to which the original Mortgagor and any
original guarantors are released from liability, and the transferee and
any new guarantors are substituted therefor and become liable under the
Mortgage Note and any related guaranties and, in connection therewith, may
require from the related Mortgagor a reasonable and customary fee for the
additional services performed by it, together with reimbursement for any
related costs and expenses incurred by it. In addition, the Master
Servicer or the Special Servicer, as the case may be, if consistent with
the Servicing Standard, shall require as a condition of its approval that
the related Mortgagor pay all costs associated with such transfer. The
Master Servicer or the Special Servicer, as the case may be, shall
promptly notify the Trustee in writing of any such agreement and forward
the original thereof to the Trustee for inclusion in the related Mortgage
File.
(b) In connection with any permitted assumption of any Serviced Loan
or waiver of a "due-on-sale" or "due-on-encumbrance" clause thereunder, the
Master Servicer (in the case of a Performing Serviced Loan) or the Special
Servicer (in the case of a Specially Serviced Loan) shall prepare all documents
necessary and appropriate for such purposes and shall coordinate with the
related Mortgagor for the due execution and delivery of such documents.
(c) If the Master Servicer or the Special Servicer collects an
assumption fee or an assumption application fee in connection with any transfer
or proposed transfer of any interest in a Mortgagor or a Mortgaged Property,
then the Master Servicer or the Special Servicer, as applicable, will apply that
fee to cover the costs and expenses associated with that transfer or proposed
transfer that are not otherwise paid by the related Mortgagor and that would
otherwise be payable or reimbursable out of the Trust Fund, including any Rating
Agency fees and expenses. Any remaining portion of such assumption fee (such
remaining portion, a "Net Assumption Fee") or of such assumption application fee
(such remaining portion, a "Net Assumption Application Fee") will be applied as
additional compensation to the Master Servicer or the Special Servicer in
accordance with Section 3.11.
Section 3.09 Realization Upon Defaulted Serviced Loans.
(a) The Special Servicer shall, subject to Sections 3.09(b),
3.09(c), and 3.09(d), exercise reasonable efforts, consistent with the Servicing
Standard, to foreclose upon or otherwise comparably convert the ownership of
properties and other collateral securing such of the Serviced Loans as come into
and continue in default and as to which no satisfactory arrangements can be made
for collection of delinquent payments, including pursuant to Section 3.20;
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 Serviced Whole Loan, the related Companion Loan Holder) to
the imposition of any federal income or prohibited transaction taxes under the
Code. Subject to the foregoing, however, a Mortgaged Property may be acquired
through a single member limited liability company. In addition, except as
permitted under Section 3.17, the Special Servicer shall not acquire any
personal property on behalf of the Trust pursuant to this Section 3.09 (with the
exception of cash or cash equivalents pledged as collateral for a Serviced Loan)
unless either:
(i) such personal property is incident to real property (within the
meaning of Section 856(e)(1) of the Code) so acquired by the Special
Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of Counsel
(the cost of which shall be covered by, and reimbursable as, a Servicing
Advance) to the effect that the holding of such personal property as part
of the Trust Fund will not cause either REMIC I or REMIC II to fail to
qualify as a REMIC at any time that any Certificate is outstanding or,
subject to Section 3.17, cause the imposition of a tax on the Trust under
the REMIC Provisions.
(c) Notwithstanding the foregoing provisions of this Section 3.09,
neither the Master Servicer nor the Special Servicer shall, on behalf of the
Trust (and in the case of a Mortgaged Property securing a Serviced Whole Loan,
on behalf of the related Companion Loan Holder), obtain title to a Mortgaged
Property by foreclosure, deed-in-lieu of foreclosure or otherwise, or take any
other action with respect to any Mortgaged Property, if, as a result of any such
action, the Trustee, on behalf of the Certificateholders (and in the case of a
Mortgaged Property securing a Serviced Whole Loan, on behalf of the related
Companion Loan Holder), could, in the reasonable, good faith judgment of the
Special Servicer, exercised in accordance with the Servicing Standard, be
considered to hold title to, to be a "mortgagee-in-possession" of, or to be an
"owner" or "operator" of such Mortgaged Property within the meaning of CERCLA or
any comparable law, unless:
(i) the Special Servicer has previously determined in accordance
with the Servicing Standard, based on a Phase I Environmental Assessment
(and any additional environmental testing that the Special Servicer deems
necessary and prudent) of such Mortgaged Property conducted by an
Independent Person who regularly conducts Phase I Environmental
Assessments and performed during the 12-month period preceding any such
acquisition of title or other action, that the Mortgaged Property is in
compliance with applicable environmental laws and regulations and there
are no circumstances or conditions present at the Mortgaged Property
relating to the use, management or disposal of Hazardous Materials for
which investigation, testing, monitoring, containment, clean-up or
remediation could be required under any applicable environmental laws and
regulations; or
(ii) in the event that the determination described in the
immediately preceding clause (c)(i) cannot be made, the Special Servicer
has previously determined in accordance with the Servicing Standard, on
the same basis as described in the immediately preceding clause (c)(i),
that it would maximize the recovery to the Certificateholders (or if a
Serviced Whole Loan is affected, to the Certificateholders and the related
Companion Loan Holder) (as a collective whole and, in the case of a
Serviced Whole Loan that is an A/B Whole Loan, taking into account the
subordination of the related Companion Loan), on a net present value basis
(the relevant discounting of anticipated collections that will be
distributable to Certificateholders to be performed at the related Net
Mortgage Rate) to acquire title to or possession of the Mortgaged Property
and to take such remedial, corrective and/or other further actions as are
necessary to bring the Mortgaged Property into compliance with applicable
environmental laws and regulations and to appropriately address any of the
circumstances and conditions referred to in the immediately preceding
clause (c)(i).
Any such determination by the Special Servicer contemplated by
clause (i) or clause (ii) of the preceding paragraph shall be evidenced by an
Officer's Certificate to such effect delivered to the Trustee, the Certificate
Administrator, the Master Servicer, the Directing Certificateholder, the related
Companion Loan Holder (if a Whole Loan is involved) and the Controlling Holder
(if an A/B Whole Loan, is involved), specifying all of the bases for such
determination, such Officer's Certificate to be accompanied by all related
environmental reports. The cost of such Phase I Environmental Assessment and any
such additional environmental testing shall be advanced by the Master Servicer
at the direction of the Special Servicer given in accordance with the Servicing
Standard; provided, however, the Master Servicer shall not be obligated in
connection therewith to advance any funds that, if so advanced, would constitute
a Nonrecoverable Servicing Advance. Amounts so advanced shall be subject to
reimbursement as Servicing Advances in accordance with Section 3.05(a). The cost
of any remedial, corrective or other further action contemplated by clause (ii)
of the preceding paragraph shall be payable out of the Certificate Account or,
if a Serviced Whole Loan is involved, out of the related Serviced Whole Loan
Custodial Account, pursuant to Section 3.05.
(d) If neither of the conditions set forth in clauses (i) and (ii)
of the first paragraph of Section 3.09(c) has been satisfied with respect to any
Mortgaged Property securing a Defaulted Serviced Loan, the Special Servicer
shall take such action as is in accordance with the Servicing Standard (other
than proceeding against the Mortgaged Property) and, at such time as it deems
appropriate, may, on behalf of the Trust, and, if a Serviced Whole Loan is
involved, the related Companion Loan Holder (as a collective whole and, in the
case of a Serviced Whole Loan that is an A/B Whole Loan, taking into account the
subordination of the related Companion Loan), release all or a portion of such
Mortgaged Property from the lien of the related Mortgage.
(e) The Special Servicer shall report to the Trustee, the
Certificate Administrator, the Master Servicer, the related Companion Loan
Holder (if a Serviced Whole Loan is involved), the related Controlling Holder
(if an A/B Whole Loan, is involved) and the Directing Certificateholder monthly
in writing as to any actions taken by the Special Servicer with respect to any
Mortgaged Property as to which neither of the conditions set forth in clauses
(i) and (ii) of the first paragraph of Section 3.09(c) has been satisfied, in
each case until the earliest to occur of satisfaction of either of such
conditions, release of the lien of the related Mortgage on such Mortgaged
Property and the related Serviced Loan's becoming a Corrected Serviced Loan.
(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of seeking to obtain a
deficiency judgment if the state in which the Mortgaged Property is located and
the terms of the subject Serviced Loan permit such an action and shall, in
accordance with the Servicing Standard, seek such deficiency judgment if it
deems advisable.
(g) Annually in each January, commencing in January 2008, the Master
Servicer (with information provided by the Special Servicer) shall file with the
IRS, on a timely basis, the information returns with respect to the reports of
foreclosures and abandonments and reports relating to any cancellation of
indebtedness income with respect to any Specially Serviced Loans and REO
Properties (other than REO Properties related to any Non-Serviced Loan) required
by Sections 6050H (as applicable), 6050J and 6050P of the Code.
Contemporaneously, the Master Servicer shall deliver to the Trustee an Officer's
Certificate stating that all such information returns relating to Specially
Serviced Loans and REO Properties that were required to be filed during the
prior 12 months have been properly completed and timely provided to the IRS. The
Master Servicer shall prepare and file the information returns with respect to
the receipt of any mortgage interest received in a trade or business from
individuals with respect to any Serviced Loan as required by Section 6050H of
the Code. All information returns shall be in form and substance sufficient to
meet the reporting requirements imposed by the relevant sections of the Code.
(h) As soon as the Special Servicer makes a Final Recovery
Determination with respect to any Serviced Loan or REO Property (other than any
REO Property related to any Non-Serviced Loan), it shall promptly notify the
Trustee, the Certificate Administrator, the Master Servicer, the Directing
Certificateholder, the related Companion Loan Holder (if a Serviced Whole Loan
is involved) and the Controlling Holder (if an A/B Whole Loan, is involved). The
Special Servicer shall maintain accurate records, prepared by a Servicing
Officer, of each such Final Recovery Determination (if any) and the basis
thereof. Each such Final Recovery Determination (if any) shall be evidenced by
an Officer's Certificate delivered to the Trustee and the Master Servicer no
later than the third Business Day following such Final Recovery Determination.
Section 3.10 Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Serviced Loan, or the receipt by
the Master Servicer of a notification that payment in full shall be escrowed in
a manner customary for such purposes, the Master Servicer shall immediately
notify the Trustee and the related Companion Loan Holder (if a Serviced Whole
Loan is involved), and request delivery of the related Mortgage File by
delivering thereto a Request for Release in the form of Exhibit D that shall be
accompanied by the form of any release or discharge to be executed by the
Trustee. Any such Request for Release shall include a statement to the effect
that all amounts received or to be received in connection with such payment that
are required to be deposited into the Certificate Account pursuant to Section
3.04(a) have been or will be so deposited. Upon receipt of such notice and
request conforming in all material respects to the provisions hereof, the
Trustee shall promptly release, or cause any related Custodian to release, the
related Mortgage File to the Master Servicer or Special Servicer, as applicable.
If the Mortgage has been recorded in the name of MERS or its designee, the
Master Servicer shall take all necessary action to reflect the release of the
Mortgage on the records of MERS. No expenses incurred in connection with any
instrument of satisfaction or deed of reconveyance shall be chargeable to the
Certificate Account or if a Serviced Whole Loan is involved, the related
Serviced Whole Loan Custodial Account.
(b) If from time to time, and as appropriate for servicing or
foreclosure of any Serviced Loan, the Master Servicer or the Special Servicer
shall otherwise require any Mortgage File (or any portion thereof), then, upon
request of the Master Servicer or the Special Servicer and receipt therefrom of
a Request for Release in the form of Exhibit D attached hereto signed by a
Servicing Officer thereof, the Trustee shall release, or cause any related
Custodian to release, such Mortgage File (or portion thereof) to the Master
Servicer or the Special Servicer, as the case may be. Upon return of such
Mortgage File (or portion thereof) to the Trustee or the related Custodian, or
the delivery to the Trustee of a certificate of a Servicing Officer of the
Special Servicer stating that such Serviced Loan was liquidated and that all
amounts received or to be received in connection with such liquidation that are
required to be deposited into the Certificate Account pursuant to Section
3.04(a), or, if a Serviced Whole Loan is involved, into the related Serviced
Whole Loan Custodial Account pursuant to Section 3.04(e), have been or will be
so deposited, or that such Serviced Loan has become a REO Property, the Request
for Release shall be released by the Trustee to the Master Servicer or the
Special Servicer, as applicable.
(c) Within five Business Days of the Special Servicer's request
therefor (or, if the Special Servicer notifies the Trustee of an exigency,
within such shorter period as is reasonable under the circumstances), the
Trustee shall execute and deliver to the Special Servicer, in the form supplied
to the Trustee, as applicable, by the Special Servicer, any court pleadings,
requests for trustee's sale or other documents reasonably necessary to the
foreclosure or trustee's sale in respect of a Mortgaged Property or to any legal
action brought to obtain judgment against any Mortgagor on the Mortgage Note or
Mortgage or to obtain a deficiency judgment, or to enforce any other remedies or
rights provided by the Mortgage Note or Mortgage or otherwise available at law
or in equity or to defend any legal action or counterclaim filed against the
Trust, or if a Serviced Whole Loan is involved, against the related Companion
Loan Holder, the Master Servicer or the Special Servicer; provided that the
Trustee may alternatively execute and deliver to the Special Servicer, in the
form supplied to the Trustee by the Special Servicer, a limited power of
attorney, subject to the provisions of Section 3.01(c), issued in favor of the
Special Servicer and empowering the Special Servicer to execute and deliver any
or all of such pleadings or documents on behalf of the Trustee (however, the
Trustee shall not be liable for any misuse of such power of attorney by such
Special Servicer). Together with such pleadings or documents (or such power of
attorney empowering the Special Servicer to execute the same on behalf of the
Trustee), the Special Servicer shall deliver to the Trustee an Officer's
Certificate requesting that such pleadings or documents (or such power of
attorney empowering the Special Servicer to execute the same on behalf of the
Trustee) be executed by the Trustee and certifying as to the reason such
pleadings or documents are required and that the execution and delivery thereof
by the Trustee (or by the Special Servicer on behalf of the Trustee) will not
invalidate or otherwise affect the lien of the Mortgage, except for the
termination of such a lien upon completion of the foreclosure or trustee's sale.
If a Serviced Whole Loan is involved, such documents and pleadings shall also be
delivered by the Special Servicer to the related Companion Loan Holder.
(d) Each of the Master Servicer and the Special Servicer, as
applicable, is authorized for the benefit of the Certificateholders and, if a
Serviced Whole Loan is involved, the related Companion Loan Holder, to direct,
manage, prosecute and/or defend any and all claims and litigation relating to
(a) the enforcement of the obligations of the Borrower or guarantor under any
loan documents and (b) any action brought by the Borrower against the Trust
Fund. Such enforcement shall be carried out in accordance with the terms of this
Agreement, including, without limitation, the Servicing Standard; it being
expressly understood that (i) the Master Servicer shall not be liable for such
enforcement by the Special Servicer and (ii) the Special Servicer shall not be
liable for such enforcement by the Master Servicer. If from time to time,
pursuant to the terms of the related Intercreditor Agreement and the related
Non-Serviced Loan Servicing Agreement, and as appropriate for enforcing the
terms of the related Non-Serviced Mortgage Loan, the related Non-Serviced Loan
Master Servicer requests delivery to it of the original Mortgage Note for such
related Non-Serviced Mortgage Loan, then the Trustee shall release or cause the
release of such original Mortgage Note to such Non-Serviced Loan Master Servicer
or its designee.
Notwithstanding the foregoing, in the event (a) of any action, suit,
litigation or proceeding naming the Trustee in its individual capacity, or in
the event that any judgment is rendered against the Trustee in its individual
capacity, the Trustee, upon prior written notice to the Master Servicer or the
Special Servicer, as applicable, may retain counsel and appear in any such
proceeding on its own behalf in order to protect and represent its interests;
provided that the Master Servicer or the Special Servicer, as applicable, shall
retain the right to manage and direct any such action, suit, litigation or
proceeding, (b) of any action, suit, litigation or proceeding, other than an
action, suit, litigation or proceeding relating to the enforcement of the
obligations under the related loan documents, neither the Master Servicer nor
the Special Servicer shall, without the prior written consent of the Trustee,
(i) initiate any action, suit, litigation or proceeding in the name of the
Trustee, whether in such capacity or individually, (ii) engage counsel to
represent the Trustee or (iii) prepare, execute or deliver any government
filings, forms, permits, registrations or other documents or take any other
similar action with the intent to cause, and that actually causes, the Trustee
to be registered to do business in any state; and (c) that any court finds that
the Trustee is a necessary party in respect of any action, suit, litigation or
proceeding relating to or arising from this Agreement or any Mortgage Loan, the
Trustee shall have the right to retain counsel and appear in any such proceeding
on its own behalf in order to protect and represent its interest, whether as
Trustee or individually; provided that the Master Servicer or the Special
Servicer, as applicable, shall retain the right to manage and direct any such
action, suit, litigation or proceeding.
Section 3.11 Servicing Compensation; Interest on Servicing Advances;
Payment of Certain Expenses; Obligations of the Trustee Regarding Back-up
Servicing Advances.
(a) As compensation for its activities hereunder, the Master
Servicer shall be entitled to receive the Master Servicing Fee with respect to
each Loan (including each Specially Serviced Loan) and each related REO Loan. As
to each such Loan and REO Loan, for each calendar month (commencing with January
2008) 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 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 Serviced Whole Loan to any Companion Loan Holder under any Intercreditor
Agreement (the following items, collectively, "Additional Master Servicing
Compensation"):
(i) any and all Net Default Charges, Net Assumption Application
Fees, Net Modification Application Fees and earnout fees collected with
respect to a Performing Serviced Loan;
(ii) 50% of any and all Net Assumption Fees actually paid by a
Mortgagor with respect to a Performing Serviced Loan;
(iii) 50% of any and all Net Modification Fees, extension fees,
consent fees and waiver fees actually paid by a Mortgagor with respect to
a Performing Serviced Loan for which Special Servicer approval is
required;
(iv) any and all charges for beneficiary statements or demands,
amounts collected for checks returned for insufficient funds and other
loan processing fees actually paid by a Mortgagor with respect to a
Performing Serviced Loan and, in the case of checks returned for
insufficient funds, with respect to a Specially Serviced Loan;
(v) any and all Prepayment Interest Excess collected on the Mortgage
Loans (other than Non-Serviced Mortgage Loans);
(vi) interest or other income earned on deposits in the Investment
Accounts maintained by the Master Servicer, in accordance with Section
3.06(b) (but only to the extent of the Net Investment Earnings, if any,
with respect to any such Investment Account for each Collection Period
and, further, in the case of a Servicing Account or Reserve Account, only
to the extent such interest or other income is not required to be paid to
any Mortgagor under applicable law or under the related Mortgage); and
(vii) 50% of any and all substitution fees (net of any costs
incurred in connection with any substitution) collected on a Performing
Serviced Loan.
Notwithstanding the foregoing with respect to any 50% sharing of
fees referenced in this Section 3.11(b), the Master Servicer shall be entitled
to all such fees if with respect to the activity related to any such fee the
Master Servicer is not required to seek the consent and/or approval of the
Special Servicer pursuant to this Agreement.
To the extent that any of the amounts described in the preceding
paragraph are collected by the Special Servicer, the Special Servicer shall
promptly pay such amounts to the Master Servicer.
(c) As compensation for its activities hereunder, the Special
Servicer shall be entitled to receive monthly the Special Servicing Fee with
respect to each Specially Serviced Loan and each REO Loan for which it is
responsible. As to each Specially Serviced Loan and REO Loan, for any particular
calendar month or applicable portion thereof, the Special Servicing Fee shall
accrue at the Special Servicing Fee Rate on the same principal amount as
interest accrues from time to time during such calendar month (or portion
thereof) on such Specially Serviced Loan or is deemed to accrue from time to
time during such calendar month (or portion thereof) on such REO Loan, as the
case may be, and shall be calculated on the same Interest Accrual Basis as is
applicable for such Specially Serviced Loan or REO Loan, as the case may be. The
Special Servicing Fee with respect to any Specially Serviced Loan or REO Loan
shall cease to accrue as of the date a Liquidation Event occurs in respect
thereof or, in the case of a Specially Serviced Loan, as of the date it becomes
a Corrected Serviced Loan. Earned but unpaid Special Servicing Fees with respect
to Specially Serviced Loans and REO Loans shall be payable monthly out of
general collections on the Loans and any REO Properties on deposit in the
Certificate Account pursuant to Section 3.05(a); provided, however, if a
Serviced Whole Loan is involved, first out of funds on deposit in the related
Serviced Whole Loan Custodial Account pursuant to Section 3.05(f).
As further compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Workout Fee with respect to each
Corrected Serviced Loan. As to each Corrected Serviced Loan, the Workout Fee
shall be payable out of, and shall be calculated by application of the Workout
Fee Rate to, each payment of interest (other than Default Interest or 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 a REO Property; provided that a new Workout Fee would become
payable if and when the subject Serviced Loan again became a Corrected Serviced
Loan. If the Special Servicer is terminated, including pursuant to Section 3.23,
or resigns in accordance with Section 6.04, it shall retain the right to receive
any and all Workout Fees payable in respect of (i) any Serviced Loans serviced
by it that became Corrected Serviced Loans during the period that it acted as
Special Servicer and that were still Corrected Serviced Loans at the time of
such termination or resignation and (ii) any Specially Serviced Loans for which
such Special Servicer has resolved the circumstances and/or conditions causing
any such Serviced Loan to be a Specially Serviced Loan, but that had not as of
the time the Special Servicer was terminated become a Corrected Serviced Loan
solely because the related Mortgagor had not made three consecutive timely
Monthly Payments and that subsequently becomes a Corrected Serviced Loan as a
result of the related Mortgagor making such three consecutive timely monthly
payments (and the successor to the Special Servicer shall not be entitled to any
portion of such Workout Fees), in each case until the Workout Fee for any such
loan ceases to be payable in accordance with the preceding sentence; provided
that, in the case of any Specially Serviced Loan described in clause (ii) of
this sentence, the terminated Special Servicer shall immediately deliver the
related Servicing File to the Master Servicer, and the Master Servicer shall
(without further compensation) monitor that all conditions precedent to such
Serviced Loan's becoming a Corrected Serviced Loan are satisfied and, further,
shall immediately transfer such Servicing File to the new Special Servicer if
and when it becomes apparent to the Master Servicer that such conditions
precedent will not be satisfied.
As further compensation for its activities hereunder, the Special
Servicer shall also be entitled to receive a Liquidation Fee with respect to
each Specially Serviced Loan or REO Loan as to which it receives any full,
partial or discounted payoff from the related Mortgagor or any Insurance
Proceeds, Condemnation Proceeds or Liquidation Proceeds. Notwithstanding the
foregoing and for the avoidance of doubt, no Liquidation Fee shall be payable in
connection with: (a) the purchase of a Defaulted Serviced Loan by the Majority
Certificateholder of the Controlling Class pursuant to any applicable purchase
right set forth in Section 3.18(c) or with respect to a purchase of a related
Defaulted Serviced Loan at its fair value as determined in Section 3.18, unless
such purchase is by an assignee of the Majority Certificateholder of the
Controlling Class or the Special Servicer, such assignee is not an affiliate of
the Majority Certificateholder of the Controlling Class or the Special Servicer,
such assignment is for no material consideration and such purchase occurs or
purchase right is exercised more than 90 days from the date that the Special
Servicer has initially determined the fair value of the related Mortgage Loan;
(b) the purchase of any Mortgage Loan by the related A/B Whole Loan Purchase
Option Holder (or its designee) or the holder of a subordinate note or a
Mezzanine Loan (or its designee) pursuant to a purchase option contained in the
related intercreditor agreement unless such purchase occurs or purchase right is
exercised more than 90 days from the date that the Special Servicer has
initially determined the fair value of the Mortgage Loan; (c) the purchase
option of the Majority Certificateholder of the Controlling Class, the Master
Servicer or the Special Servicer pursuant to Section 9.01; (d) the repurchase by
the Mortgage Loan Seller of a Mortgage Loan so required to be repurchased by it
pursuant to Section 4 of the Mortgage Loan Purchase and Sale Agreement and
Section 2.03 within the time frame set forth in the Initial Resolution Period
and/or the Resolution Extension Period (if applicable), provided that such
purchase occurs within 90 days after the date that the Mortgage Loan Seller was
first notified of its obligation to repurchase such Loan; or (e) in connection
with a Loss of Value Payment by the Mortgage Loan Seller.
As to each such Specially Serviced Loan or REO Loan, the Liquidation
Fee shall be payable out of, and shall be calculated by application of the
Liquidation Fee Rate to, any such full, partial or discounted payoff,
Condemnation Proceeds and/or Liquidation Proceeds received or collected in
respect thereof (other than any portion of such payment or proceeds that
represents Default Charges, 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 Serviced Whole Loan under the related
Intercreditor Agreement (the following items, collectively, the "Additional
Special Servicing Compensation"):
(i) any and all Net Default Charges collected with respect to a
Specially Serviced Loan or a REO Loan;
(ii) any and all Net Assumption Fees, Net Assumption Application
Fees, Net Modification Fees, Net Modification Application Fees, extension
fees, consent fees, waiver fees, earnout fees, substitution fees, late
payment charges and charges for beneficiary statements or demands that are
actually received on or with respect to a Specially Serviced Loan or a REO
Loan;
(iii) 50% of any and all Net Assumption Fees, modification fees,
extension fees, consent fees and waiver fees that are actually received on
or with respect to a Performing Serviced Loan;
(iv) interest or other income earned on deposits in the Special
Servicer's applicable REO Account in accordance with Section 3.06(b) (but
only to the extent of the Net Investment Earnings, if any, with respect to
such REO Account for each Collection Period); and
(v) 50% of any and all substitution fees (net of any costs incurred
in connection with any substitution) collected on a Performing Serviced
Loan.
Notwithstanding the foregoing with respect to the fees referenced in
the immediately preceding clauses (iii) and (v), the Special Servicer shall not
be entitled to such fees unless the Master Servicer was required to seek the
approval or consent of the Special Servicer pursuant to this Agreement with
respect to any consent, extension, modification or waiver related to any such
fee.
To the extent that any of the amounts described in the preceding
paragraph are collected by the Master Servicer with respect to a Specially
Serviced Loan, the Master Servicer shall promptly pay such amounts to the
Special Servicer and shall not be required to deposit such amounts in the
Certificate Account or if a Serviced Whole Loan is involved, in the related
Serviced Whole Loan Custodial Account.
(e) The Master Servicer and the Special Servicer shall each be
required (subject to Section 3.11(h)) to pay out of its own funds all expenses
incurred by it in connection with its servicing activities hereunder (including
payment of any amounts due and owing to any Sub-Servicers retained by it
(including any termination fees) and the premiums for any blanket policy or the
standby fee or similar premium, if any, for any master force placed policy
obtained by it insuring against hazard losses pursuant to Section 3.07(b)), if
and to the extent such expenses are not payable directly out of the Certificate
Account, the related Serviced Whole Loan Custodial Account, the Reserve Accounts
or a REO Account, and neither the Master Servicer nor the Special Servicer shall
be entitled to reimbursement for any such expense incurred by it except as
expressly provided in this Agreement. If the Master Servicer is required to make
any Servicing Advance hereunder at the direction of the Special Servicer in
accordance with Section 3.03(c), Section 3.19 or otherwise, the Special Servicer
shall promptly provide the Master Servicer with such documentation regarding the
subject Servicing Advance as the Master Servicer may reasonably request.
(f) If the Master Servicer is required under this Agreement to make
a Servicing Advance, but does not do so within ten days after such Advance is
required to be made, the Trustee shall, if it has actual knowledge of such
failure on the part of the Master Servicer, give notice of such failure to the
Master Servicer. If such Advance is not made by the Master Servicer within three
Business Days after such notice, then (subject to Section 3.11(h)) the Trustee
shall make such Advance. Any failure by the Master Servicer to make a Servicing
Advance it is required to make hereunder shall constitute an Event of Default by
the Master Servicer, subject to and as provided in Section 7.01(a).
(g) The Master Servicer, the Special Servicer and the Trustee shall
each be entitled to receive interest at the Reimbursement Rate in effect from
time to time, accrued on the amount of each Advance made thereby (with its own
funds), for so long as such Advance is outstanding. Such interest with respect
to any Advances shall be payable: (i) first, in accordance with Sections 3.05
and 3.27, out of any Default Charges subsequently collected on or in respect of
the Mortgage Pool or Companion Loan related to a Serviced Whole Loan, if
applicable; and (ii) then, after such Advance is reimbursed, but only if and to
the extent that such Default Charges are insufficient to cover such Advance
Interest, out of general collections on the Mortgage Loans and REO Properties on
deposit in the Certificate Account or, if a Serviced Whole Loan or related REO
Property is involved, on deposit in the related Serviced Whole Loan Custodial
Account. The Master Servicer shall reimburse itself, the Special Servicer or the
Trustee, as appropriate, for any Advance made by any such Person as soon as
practicable after funds available for such purpose are deposited into the
Certificate Account or, if a Serviced Whole Loan is involved, are deposited into
the related Serviced Whole Loan Custodial Account. Notwithstanding anything
herein to the contrary, no interest shall be payable with respect to any P&I
Advance of a payment due on a Serviced Loan during the applicable grace period
and interest shall cease to accrue on any Workout-Delayed Reimbursement Amount
to the extent such amount has been reimbursed from principal collections in
accordance with Section 3.05.
(h) Notwithstanding anything to the contrary set forth herein, none
of the Master Servicer, the Special Servicer or the Trustee shall be required to
make any Servicing Advance that it determines in its reasonable, good faith
judgment would constitute a Nonrecoverable Servicing Advance; provided, however,
the Special Servicer may, at its option, in consultation with the Directing
Certificateholder, make a determination in accordance with the Servicing
Standard, that any Servicing Advance previously made or proposed to be made is a
Nonrecoverable Servicing Advance and shall deliver to the Master Servicer and
the Trustee notice of such determination. Any such determination shall be
conclusive and binding on the Master Servicer and the Trustee. The determination
by any Person with an obligation hereunder to make Servicing Advances (or a
determination by the Special Servicer with respect to such Person) that it has
made a Nonrecoverable Servicing Advance or that any proposed Servicing Advance,
if made, would constitute a Nonrecoverable Servicing Advance, shall be made by
such Person in its reasonable, good faith judgment and shall be evidenced by an
Officer's Certificate delivered promptly to the Depositor and the Trustee
(unless it is the Person making such determination), and the Trustee shall
provide a copy thereof to the Directing Certificateholder, the related Companion
Loan Holder (if a Serviced Whole Loan is involved and the Trustee has knowledge
of such Companion Loan Holder), setting forth the basis for such determination,
accompanied by a copy of an Appraisal of the related Mortgaged Property or REO
Property performed within the 12 months preceding such determination, and
further accompanied by any other information, including engineers' reports,
environmental surveys or similar reports, that such Person may have obtained and
that support such determination. Notwithstanding the foregoing and the Trustee
(i) shall conclusively rely on and be bound by any determination of
nonrecoverability that may have been made by the Special Servicer and (ii) shall
be entitled to conclusively rely on any determination of nonrecoverability that
may have been made by the Master Servicer with respect to a particular Servicing
Advance, and the Master Servicer and the Special Servicer shall each be entitled
to conclusively rely on any determination of nonrecoverability that may have
been made by the other such party with respect to a particular Servicing
Advance. A copy of any such Officer's Certificate (and accompanying information)
of the Master Servicer shall also be delivered promptly to the Special Servicer,
a copy of any such Officer's Certificate (and accompanying information) of the
Special Servicer shall also be promptly delivered to the Master Servicer, and a
copy of any such Officer's Certificates (and accompanying information) of the
Trustee shall also be promptly delivered to the Master Servicer and the Special
Servicer. The Master Servicer shall consider Unliquidated Advances in respect of
prior Servicing Advances for purposes of nonrecoverability determinations as if
such Unliquidated Advances were unreimbursed Servicing Advances.
(i) Notwithstanding anything to the contrary set forth herein, the
Master Servicer may (and, at the direction of the Special Servicer if a
Specially Serviced Loan or a REO Property is involved, shall) pay directly out
of the Certificate Account or, if a Serviced Whole Loan is involved, the related
Serviced Whole Loan Custodial Account, in accordance with Section 3.05, any
servicing expense that, if paid by the Master Servicer or the Special Servicer,
would constitute a Nonrecoverable Servicing Advance; provided that the Master
Servicer (or the Special Servicer, if a Specially Serviced Loan or a REO
Property is involved) has determined in accordance with the Servicing Standard
that making such payment is in the best interests of the Certificateholders, or
if a Serviced Whole Loan is affected, the interests of the Certificateholders
and the related Companion Loan Holder (as a collective whole and, in the case of
a Serviced Whole Loan that is an A/B Whole Loan, taking into account the
subordination of the related Companion Loan), as evidenced by an Officer's
Certificate delivered promptly to the Depositor and the Trustee, which shall
provide a copy thereof to the Directing Certificateholder and the related
Companion Loan Holder (if applicable) (if a Serviced Whole Loan is involved and
the Trustee has knowledge of such Companion Loan Holder), setting forth the
basis for such determination and accompanied by any information that such Person
may have obtained that supports such determination. A copy of any such Officer's
Certificate (and accompanying information) of the Master Servicer shall also be
delivered promptly to the Special Servicer, and a copy of any such Officer's
Certificate (and accompanying information) of the Special Servicer shall also be
promptly delivered to the Master Servicer.
Section 3.12 Inspections; Collection of Financial Statements.
(a) The Special Servicer shall perform or cause to be performed a
physical inspection of a Mortgaged Property as soon as practicable (but in any
event not later than 60 days) after the related Serviced Loan becomes a
Specially Serviced Loan (and, in cases where the related Serviced Loan has
become a Specially Serviced Loan, the Special Servicer shall continue to perform
or cause to be performed a physical inspection of the subject Mortgaged Property
at least once per calendar year thereafter for so long as the related Serviced
Loan remains a Specially Serviced Loan or if such Mortgaged Property becomes a
REO Property); provided that the Special Servicer shall be entitled to
reimbursement of the reasonable and direct out-of-pocket expenses incurred by it
in connection with each such inspection as Servicing Advances. Beginning in
2008, the Master Servicer shall at its expense perform or cause to be performed
an inspection of each Mortgaged Property (other than a Mortgaged Property
related to any Non-Serviced Loan) at least once per calendar year (or, in the
case of each Loan with an unpaid principal balance of under $2,000,000, once
every two years), if the Special Servicer has not already done so during that
period pursuant to the preceding sentence. The costs of each such inspection
incurred by the Special Servicer shall be reimbursable first from Default
Charges and then, to the extent such Default Charges are insufficient, out of
general collections. To the extent such costs are to be reimbursed from general
collections, such costs shall constitute an Additional Trust Fund Expense. The
Master Servicer and the Special Servicer shall each prepare a written report of
each such inspection performed by it or on its behalf that sets forth in detail
the condition of the Mortgaged Property and that specifies the occurrence or
existence of: (i) any sale, transfer or abandonment of the Mortgaged Property of
which the Master Servicer or the Special Servicer, as the case may be, is aware,
(ii) any change in the condition or occupancy of the Mortgaged Property that the
Master Servicer or the Special Servicer, as the case may be, in accordance with
the Servicing Standard, is aware of and considers material, or (iii) any waste
committed on the Mortgaged Property that the Master Servicer or the Special
Servicer, as the case may be, in accordance with the Servicing Standard, is
aware of and considers material. Upon request of the Trustee, the Certificate
Administrator, the Master Servicer and the Special Servicer shall each deliver
to the Trustee or the Certificate Administrator, as applicable, 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 or the Certificate Administrator, as
applicable, 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 or the Certificate Administrator, as applicable, by the Master Servicer
or the Special Servicer, as the case may be, deliver, upon request, to each of
the Depositor, the Mortgage Loan Seller, the Directing Certificateholder, the
related Companion Loan Holder or any Controlling Holder, as applicable (if a
Serviced Whole Loan is involved and the Trustee or the Certificate
Administrator, as applicable, has knowledge of such Companion Loan Holder or
such Controlling Holder, as applicable), any Certificateholder or, if the
Trustee or the Certificate Administrator, as applicable, 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 March
2008, the Special Servicer, in the case of any Specially Serviced Loan, and the
Master Servicer, in the case of each Performing Serviced Loan, shall make
reasonable efforts to collect promptly (and, in any event, shall attempt to
collect within 45 days following the end of the subject quarter or 120 days
following the end of the subject year) from each related Mortgagor quarterly and
annual operating statements, budgets and rent rolls of the related Mortgaged
Property, and quarterly and annual financial statements of such Mortgagor, to
the extent required pursuant to the terms of the related Mortgage. In addition,
the Special Servicer shall cause quarterly and annual operating statements,
budgets and rent rolls to be regularly prepared in respect of each REO Property
(other than any REO Property related to any Non-Serviced Mortgage Loan) and
shall collect all such items promptly following their preparation. The Special
Servicer shall deliver copies (or images in suitable electronic media) of all of
the foregoing items so collected or obtained by it to the Master Servicer within
30 days of its receipt thereof.
Within 60 days after receipt by the Master Servicer from the related
Mortgagors or otherwise, as to any Performing Serviced Loan, and within 45 days
after receipt by the Special Servicer or otherwise, as to any Specially Serviced
Loan or REO Property (other than REO Property related to any Non-Serviced Loan),
of any annual operating statements or rent rolls with respect to any Mortgaged
Property (other than the Mortgaged Property related to any Non-Serviced Loan) or
REO Property (other than any REO Property related to any Non-Serviced Loan), the
Master Servicer (or the Special Servicer, with respect to any REO Property)
shall, based upon such operating statements or rent rolls, prepare (or, if
previously prepared, update) the related CMSA Operating Statement Analysis
Report commencing March 31, 2008. The Master Servicer also shall deliver to the
Directing Certificateholder (in hard copy or electronic format, as requested)
copies of all such rent rolls and operating statements and quarterly and
year-end rent rolls and operating statements (to the extent received) normalized
pursuant to the CMSA format. 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
Certificate Administrator. 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 Certificate Administrator shall, upon request, request from the
Master Servicer (if necessary) and, to the extent such items have been delivered
to the Certificate Administrator by the Master Servicer, deliver to the
Directing Certificateholder, the related Companion Loan Holder (if a Serviced
Whole Loan is involved and the Certificate Administrator has knowledge of such
Companion Loan Holder), any Certificateholder or, if the Certificate
Administrator has in accordance with Section 5.06 confirmed the Ownership
Interest in the Certificates held thereby, any Certificate Owner, a copy of such
CMSA Operating Statement Analysis (or update thereof) and, if requested, the
related operating statement or rent rolls.
Within 60 days (or, in the case of items received from the Special
Servicer with respect to Specially Serviced Loans and REO Properties, 30 days)
after receipt by the Master Servicer of any quarterly or annual operating
statements with respect to any Mortgaged Property (other than with respect to
the Mortgaged Property related to any Non-Serviced Loan) or REO Property (other
than any REO Property related to any Non-Serviced Loan), the Master Servicer (or
the Special Servicer, with respect to any REO Property) shall prepare or update
and forward to the Certificate Administrator (upon request), the Master Servicer
(with respect to CMSA NOI Adjustment Worksheets prepared by the Special
Servicer), the Special Servicer (with respect to CMSA NOI Adjustment Worksheets
prepared by the Master Servicer), the Directing Certificateholder (if the
Directing Certificateholder and the Special Servicer are not the same entity),
the related Companion Loan Holder, upon its request (if the related Serviced
Whole Loan is involved), a CMSA NOI Adjustment Worksheet for such Mortgaged
Property or REO Property, together with, if so requested, the related operating
statements (in an electronic format reasonably acceptable to the Certificate
Administrator and the Special Servicer) commencing March 31, 2008.
If, with respect to any Serviced Loan (other than a Specially
Serviced Loan), the Special Servicer has any questions for the related Mortgagor
based upon the information received by the Special Servicer pursuant to Section
3.12(a) or Section 3.12(b), the Master Servicer shall, in this regard and
without otherwise changing or modifying its duties hereunder, reasonably
cooperate with the Special Servicer in assisting the Special Servicer to contact
and solicit information from such Mortgagor.
(c) Not later than 2:00 p.m. (New York City time) on the first
Business Day following each Determination Date, the Special Servicer shall
prepare and deliver or cause to be delivered to the Master Servicer, the
Directing Certificateholder and the related Companion Loan Holder (if a Serviced
Whole Loan is involved), the following reports (or data files relating to
reports of the Master Servicer) with respect to the Specially Serviced Loans and
any REO Properties for which it is responsible, providing the required
information as of such Determination Date: (i) a CMSA Property File; (ii) a CMSA
Special Servicer Loan File (which, in each case, if applicable, will identify
each Serviced Loan by loan number and property name); and (iii) the CMSA REO
Status Report. In addition, the Special Servicer shall from time to time provide
the Master Servicer with such information in the Special Servicer's possession
regarding the Specially Serviced Loans and REO Properties as may be requested by
the Master Servicer and is reasonably necessary for the Master Servicer to
prepare each report and any supplemental information required to be provided by
the Master Servicer to the Certificate Administrator.
(d) Beginning in March 2008, 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 January 2008), the Master Servicer shall prepare (if and to the
extent necessary) and deliver or cause to be delivered to the Certificate
Administrator, the Special Servicer, the Directing Certificateholder (if the
Directing Certificateholder is not the same entity as the Special Servicer) and
the related Companion Loan Holder (if the related Serviced Whole Loan is
involved), in a computer-readable medium downloadable by the Certificate
Administrator, the Special Servicer, the Directing Certificateholder and the
related Companion Loan Holder (if a Serviced Whole Loan is involved) (or, in the
case of the Certificate Administrator, at the Certificate Administrator'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 Certificate
Administrator), 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 Certificate Administrator) available each month on the Master Servicer's
website; provided, that the Master Servicer shall e-mail such reports or files
to the Directing Certificateholder and the related Companion Loan Holder (if a
Serviced Whole Loan is involved), until the Master Servicer's website is
established. In connection with providing access to the Master Servicer's
website, the Master Servicer may require registration and the acceptance of a
disclaimer and otherwise (subject to the preceding sentence) adopt reasonable
rules and procedures, which may include, to the extent the Master Servicer deems
necessary or appropriate, conditioning access on execution of an agreement
governing the availability, use and disclosure of such information, and which
may provide indemnification to the Master Servicer for any liability or damage
that may arise therefrom.
(e) The Special Servicer shall deliver to the Master Servicer the
reports set forth in Section 3.12(b) and Section 3.12(c), and the Master
Servicer shall deliver to the Certificate Administrator 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 Certificate
Administrator. 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 Certificate Administrator 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 Certificate Administrator 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 Certificate Administrator 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
Certificate Administrator the initial data (as of the respective Due Dates for
the Loans in December 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 the 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
Certificate Administrator's Website, unless this Agreement expressly specifies a
particular method of delivery. Notwithstanding the foregoing, the Certificate
Administrator may request delivery in paper format of any statement, report or
information required to be delivered to the Certificate Administrator and clause
(z) of this paragraph shall not apply to the delivery of any information
required to be delivered to the Certificate Administrator unless the Certificate
Administrator 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 Certificate Administrator, the Depositor, each Rating
Agency, the Directing Certificateholder and the related Companion Loan Holder or
any Controlling Holder, as applicable (if a Serviced Whole Loan is involved),
and to the OTS, the FDIC and any other banking or insurance regulatory authority
that may exercise authority over any Certificateholder or Certificate Owner,
access to any records regarding the Loans and the servicing thereof within its
control, except to the extent it is prohibited from doing so by applicable law,
the terms of the loan documents or contract entered into prior to the Closing
Date or to the extent such information is subject to a privilege under
applicable law to be asserted on behalf of the Certificateholders. Such access
shall be afforded without charge but only upon reasonable prior written request
and during normal business hours at the offices of the Master Servicer or the
Special Servicer, as the case may be, designated by it; provided, however,
Certificateholders and Certificate Owners shall be required to pay their own
photocopying costs. The Master Servicer and the Special Servicer shall each be
entitled to affix a reasonable disclaimer to any information provided by it for
which it is not the original source (without suggesting liability on the part of
any other party hereto). In connection with providing access to such records to
the Directing Certificateholder and any related Companion Loan Holder or any
Controlling Holder, as applicable (if a Serviced Whole Loan is involved), the
Master Servicer and the Special Servicer may each require registration (to the
extent access is provided via the Master Servicer's internet website) and the
acceptance of a reasonable disclaimer and otherwise adopt reasonable rules and
procedures, which may include, to the extent the Master Servicer or the Special
Servicer, as applicable, deems necessary or reasonably appropriate, conditioning
access on the execution and delivery of an agreement reasonably governing the
availability, use and disclosure of such information. The failure of the Master
Servicer or the Special Servicer to provide access as provided in this Section
3.15 as a result of a confidentiality obligation shall not constitute a breach
of this Section 3.15. The Master Servicer and the Special Servicer may each deny
any of the foregoing persons access to confidential information or any
intellectual property that the Master Servicer or the Special Servicer is
restricted by license or contract from disclosing. In connection with providing
access to information pursuant to this Section 3.15 to parties other than the
Trustee, the Certificate Administrator, the Master Servicer and the Special
Servicer may each (i) affix a reasonable disclaimer to any information provided
by it for which it is not the original source (without suggesting liability on
the part of any other party hereto); (ii) affix to any information provided by
it a reasonable statement regarding securities law restrictions on such
information and/or condition access to information on the execution of a
reasonable confidentiality agreement; (iii) withhold access to confidential
information or any intellectual property; and (iv) withhold access to items of
information contained in the Servicing File for any Mortgage Loan if the
disclosure of such items is prohibited by applicable law or the provisions of
any related loan documents or would constitute a waiver of the attorney client
privilege. Notwithstanding any provision of this Agreement to the contrary, the
failure of the Master Servicer or the Special Servicer to disclose any
information otherwise required to be disclosed by it pursuant to this Agreement
shall not constitute a breach of this Agreement to the extent that the Master
Servicer or the Special Servicer, as the case may be, determines, in its
reasonable good faith judgment consistent with the applicable Servicing
Standard, that such disclosure would violate applicable law or any provision of
a loan document or, in the case of a Serviced Whole Loan, any document relating
to the related Companion Loan prohibiting disclosure of information with respect
to the Mortgage Loans, the Companion Loan related to a Serviced Whole Loan or
the Mortgaged Properties, constitute a waiver of the attorney client privilege
on behalf of the Trust or the Trust Fund or otherwise materially harm the Trust
or the Trust Fund. Neither the Master Servicer nor the Special Servicer shall be
liable for providing or disseminating information in accordance with the terms
of this Agreement.
(b) Once a month, each of the Master Servicer and the Special
Servicer shall, without charge, make a knowledgeable Servicing Officer available
to answer questions from the Directing Certificateholder during regular business
hours at such time and for such duration as the Master Servicer or the Special
Servicer, as applicable, and the Directing Certificateholder shall reasonably
agree, regarding the performance and servicing of the Mortgage Loans and/of REO
Properties for which the Master Servicer or the Special Servicer, as the case
may be, is responsible. As a condition to such disclosure, the Directing
Certificateholder shall execute a confidentiality agreement substantially in the
form attached hereto as Exhibit M.
Section 3.16 Title to REO Property; REO Account.
(a) If title to any REO Property (other than any REO Property
related to any Non-Serviced Loan) is acquired, the deed or certificate of sale
shall be issued to the Trustee or its nominee, on behalf of the
Certificateholders and, if a Serviced Whole Loan is affected, the related
Companion Loan Holder or, subject to Section 3.09(b), to a single member limited
liability company of which the Trust is the sole member, which limited liability
company is formed or caused to be formed by the Special Servicer at the expense
of the Trust for the purpose of taking title to one or more REO Properties
pursuant to this Agreement. The limited liability company shall be (i)
disregarded as an entity separate from the Trust pursuant to Treasury
Regulations Section 301.7701-3(b), and (ii) a manager-managed limited liability
company, with the Special Servicer to serve as the initial manager to manage the
property of the limited liability company, including any applicable REO Property
(other than any REO Property related to any Non-Serviced Loan), in accordance
with the terms of this Agreement as if such property was held directly in the
name of the Trust or Trustee under this Agreement. The Special Servicer, on
behalf of the Trust (and in the case of a Serviced Whole Loan, on behalf of the
related Companion Loan Holder), shall sell any REO Property (other than any REO
Property related to any Non-Serviced Loan) by the end of the third calendar year
following the year in which the Trustee on behalf of the Certificateholders and,
if applicable, the related Companion Loan Holder acquire ownership of such REO
Property for purposes of Section 860G(a)(8) of the Code, unless the Special
Servicer either (i) applies, more than 60 days prior to the expiration of such
liquidation period, and is granted an extension of time (an "REO Extension") by
the IRS to sell such REO Property or (ii) obtains for the Trustee an Opinion of
Counsel, addressed to the Trustee, to the effect that the holding by the Trust
of such REO Property subsequent to the end of the third calendar year following
the year in which such acquisition occurred will not result in an Adverse REMIC
Event with respect to either of REMIC I or REMIC II. Regardless of whether the
Special Servicer applies for or is granted the REO Extension contemplated by
clause (i) of the immediately preceding sentence or obtains the Opinion of
Counsel referred to in clause (ii) of such sentence, the Special Servicer shall
act in accordance with the Servicing Standard to liquidate such REO Property on
a timely basis. If the Special Servicer is granted such REO Extension or obtains
such Opinion of Counsel, the Special Servicer shall (i) promptly forward a copy
of such REO Extension or Opinion of Counsel to the Trustee, and (ii) sell such
REO Property within such extended period as is permitted by such REO Extension
or contemplated by such Opinion of Counsel, as the case may be. Any expense
incurred by the Special Servicer in connection with its applying for and being
granted the REO Extension contemplated by clause (i) of the third preceding
sentence or its obtaining the Opinion of Counsel contemplated by clause (ii) of
the third preceding sentence, and for the creation of and the operating of a
limited liability company, shall be covered by, and be reimbursable as, a
Servicing Advance. In the case of the Trust's beneficial interest in a Mortgaged
Property acquired under any Non-Serviced Loan 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 a REO Acquisition shall occur, except as provided in the
immediately succeeding sentence, the Special Servicer shall establish and
maintain one or more Pool REO Accounts, to be held on behalf of the Trustee in
trust for the benefit of the Certificateholders, for the retention of revenues
and other proceeds derived from each REO Property. If such REO Acquisition
occurs with respect to any Mortgaged Property securing a Serviced Whole Loan,
the Special Servicer shall establish a REO Account solely with respect to such
property (a "Serviced Whole Loan REO Account"), which may be a sub-account of
the Pool REO Account, to be held for the benefit of the Certificateholders and
the related Companion Loan Holder. Each REO Account shall be an Eligible Account
and may consist of one account for all the REO Properties. The Special Servicer
shall deposit, or cause to be deposited, into the related REO Account, within
two Business Days of receipt, all REO Revenues, Liquidation Proceeds (net of all
Liquidation Expenses paid therefrom) and Insurance Proceeds received in respect
of a REO Property. The Special Servicer is authorized to pay out of related
Liquidation Proceeds any Liquidation Expenses incurred in respect of a REO
Property and outstanding at the time such proceeds are received. Funds in a REO
Account may be invested only in Permitted Investments in accordance with Section
3.06. The Special Servicer shall be entitled to make withdrawals from a REO
Account to pay itself, as Additional Special Servicing Compensation in
accordance with Section 3.11(d), interest and investment income earned in
respect of amounts held in such REO Account as provided in Section 3.06(b) (but
only to the extent of the Net Investment Earnings with respect to the REO
Account for any Collection Period). The Special Servicer shall give notice to
the other parties hereto and if a Serviced Whole Loan is involved, the related
Companion Loan Holder, of the location of a REO Account when first established
and of the new location of a REO Account prior to any change thereof.
(c) The Special Servicer shall withdraw from the REO Account funds
necessary for the proper operation, management, maintenance and disposition of
any REO Property (other than any REO Property related to any Non-Serviced Loan),
but only to the extent of amounts on deposit in the applicable REO Account
relating to such REO Property. By 2:00 p.m., New York City time, on the Business
Day following the end of each Collection Period, the Special Servicer shall
withdraw from the related REO Account and deposit into the Certificate Account
or the applicable Serviced Whole Loan Custodial Account, as applicable, or
deliver to the Master Servicer (which shall deposit such amounts into the
Certificate Account or the applicable Serviced Whole Loan Custodial Account, as
applicable), the aggregate of all amounts received in respect of each such REO
Property during such Collection Period, net of any withdrawals made out of such
amounts pursuant to the preceding sentence; provided that the Special Servicer
may retain in the applicable REO Account such portion of such proceeds and
collections as may be necessary to maintain a reserve of sufficient funds for
the proper operation, management, leasing, maintenance and disposition of any
such REO Property (including the creation of a reasonable reserve for repairs,
replacements, necessary capital improvements and other related expenses), such
reserve not to exceed an amount sufficient to cover such items reasonably
expected to be incurred during the following 12-month period. For purposes of
the foregoing, the Pool REO Account and a Serviced Whole Loan REO Account
correspond to the Certificate Account and the related Serviced Whole Loan
Custodial Account, respectively.
(d) The Special Servicer shall keep and maintain separate records,
on a property-by-property basis, for the purpose of accounting for all deposits
to, and withdrawals from, a REO Account pursuant to Section 3.16(b) or (c).
Section 3.17 Management of REO Property.
(a) If title to any REO Property (other than any REO Property
related to any Non-Serviced Loan) is acquired, the Special Servicer shall
manage, conserve, protect, operate and lease such REO Property for the benefit
of the Certificateholders (and, in the case of a Serviced Whole Loan, for the
benefit of the related Companion Loan Holder as a collective whole and, in the
case of an A/B Whole Loan, taking into account the subordination of the related
Companion Loan) solely for the purpose of its timely disposition and sale in a
manner that does not cause such REO Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code or result in the
receipt by the Trust Fund of any "income from non permitted assets" within the
meaning of Section 860F(a)(2)(B) of the Code. Subject to the foregoing, however,
the Special Servicer shall have full power and authority to do any and all
things in connection therewith as are in the best interests of and for the
benefit of the Certificateholders (and, in the case of a Serviced Whole Loan,
for the benefit of the related Companion Loan Holder (as a collective whole and,
in the case of a Serviced Whole Loan that is an A/B Whole Loan, taking into
account the subordination of the related Companion Loan) (as determined by the
Special Servicer in its good faith and reasonable judgment). Subject to this
Section 3.17, the Special Servicer may earn "net income from foreclosure
property" within the meaning of Section 860G(c) of the Code if it determines
that earning such income is in the best interests of Certificateholders, or, if
a Serviced Whole Loan is affected, the interests of the Certificateholders and
the related Companion Loan Holder (as a collective whole and, in the case of a
Serviced Whole Loan that is an A/B Whole Loan, taking into account the
subordination of the related Companion Loan), on a net after-tax basis as
compared with net leasing such REO Property or operating such REO Property on a
different basis. In connection therewith, the Special Servicer shall deposit or
cause to be deposited on a daily basis (and in no event later than the second
Business Day following receipt of such funds), in the applicable REO Account all
revenues received by it with respect to each such REO Property and the related
REO Loan, and shall withdraw from the applicable REO Account, to the extent of
amounts on deposit therein with respect to such REO Property, funds necessary
for the proper operation, management, leasing, maintenance and disposition of
such REO Property, including, without limitation:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property, if
applicable; and
(iv) all costs and expenses necessary to maintain, lease and dispose
of such REO Property.
To the extent that amounts on deposit in the REO Account in respect
of any such REO Property are insufficient for the purposes set forth in clauses
(i) through (iv) of this Section 3.17(a) with respect to such REO Property, the
Special Servicer shall, subject to Section 3.19(d), direct the Master Servicer
to make (and the Master Servicer shall so make) Servicing Advances in such
amounts as are necessary for such purposes unless (as evidenced in the manner
contemplated by Section 3.11(g)) the Master Servicer determines, in its
reasonable, good faith judgment, that such payment would be a Nonrecoverable
Servicing Advance.
(b) Without limiting the generality of the foregoing, the Special
Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend any New
Lease with respect to any REO Property (other than any REO Property
related to any Non-Serviced Loan), if the New Lease by its terms will give
rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease
other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on any such REO Property,
other than the completion of a building or other improvement thereon, and
then only if more than 10% of the construction of such building or other
improvement was completed before default on the related Serviced Loan
became imminent, all within the meaning of Section 856(e)(4)(B) of the
Code; or
(iv) Directly Operate, or allow any other Person, other than an
Independent Contractor, to Directly Operate, any such REO Property on any
date more than 90 days after its acquisition date;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel (the cost of which shall be paid by the Master Servicer as a Servicing
Advance) to the effect that such action will not cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code at any time that it is held by the Trust Fund, in which case the
Special Servicer may take such actions as are specified in such Opinion of
Counsel.
(c) The Special Servicer shall contract with any Independent
Contractor for the operation and management of any REO Property (other than any
REO Property related to any Non-Serviced Loan) within 90 days of the acquisition
date thereof, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be an
expense of the Trust Fund, unless a Serviced Whole Loan is involved, in
which case such fees shall be netted out of collections on the REO
Property prior to being remitted to the Special Servicer) shall be
reasonable and customary in light of the nature and locality of the REO
Property;
(iii) any such contract shall require, or shall be administered to
require, that the Independent Contractor (A) pay all costs and expenses
incurred in connection with the operation and management of such REO
Property, including, without limitation, those listed in Section 3.17(a),
and (B) remit all related revenues collected (net of its fees and such
costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties and
obligations hereunder with respect to the operation and management of any
such REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to
the same extent as if it alone were performing all duties and obligations
in connection with the operation and management of such REO Property.
The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for it related to its duties
and obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification. To the extent the costs of any contract with an
Independent Contractor for the operation and maintenance of any REO Property are
greater than the revenues from such REO Property (other than any REO Property
related to any Non-Serviced Loan), such excess costs shall be covered by and
reimbursable as a Servicing Advance.
(d) When and as necessary, the Special Servicer shall send to the
Trustee and the Master Servicer a statement prepared by the Special Servicer
setting forth the amount of net income or net loss, as determined for federal
income tax purposes, resulting from the operation and management of a trade or
business on, the furnishing or rendering of a non customary service to the
tenants of, or the receipt of any other amount not constituting Rents from Real
Property in respect of, any REO Property (other than any REO Property related to
any Non-Serviced Loan) in accordance with Section 3.17(a) and Section 3.17(b).
Section 3.18 Resolution of Defaulted Serviced Loans and REO
Properties.
(a) The Master Servicer, the Special Servicer or the Trustee may
sell or purchase, or permit the sale or purchase of, a Loan or a related REO
Property (other than any REO Property related to any Non-Serviced Loan) only on
the terms and subject to the conditions set forth in this Section 3.18 or as
otherwise expressly provided in or contemplated by Section 2.03(a), Section
9.01, an Intercreditor Agreement, or, in the case of a Mortgage Loan with a
related Mezzanine Loan, pursuant to the terms of the related Mezzanine
Intercreditor Agreement, or, in the case of a Whole Loan pursuant to the terms
of the related Intercreditor Agreement.
(b) After the Master Servicer has pursuant to Section 3.21(a)
notified the Special Servicer of a Servicing Transfer Event and in connection
therewith has provided the Special Servicer with the information required under
Section 3.21(a) with respect to any Defaulted Serviced Loan, the Special
Servicer shall determine the fair value of such Defaulted Serviced Loan in
accordance with the Servicing Standard as hereinafter provided; provided,
however, such determination shall be made without taking into account any effect
the restrictions on the sale of such Mortgage Loan contained herein may have on
the value of such Defaulted Serviced Loan; provided, further, the Special
Servicer shall use reasonable efforts promptly to obtain an Appraisal with
respect to the related Mortgaged Property unless it has an Appraisal that is
less than 12 months old and has no actual knowledge of, or notice of, any event
that in the Special Servicer's judgment would materially affect the validity of
such Appraisal. The Special Servicer shall make its fair value determination as
soon as reasonably practicable (but in any event within 30 days) after its
receipt of such new Appraisal, if applicable. The Special Servicer will, from
time to time, but not less often than every 90 days, adjust its fair value
determination based upon changed circumstances, new information and other
relevant factors, if any, in each instance in accordance with the Servicing
Standard. The Special Servicer shall notify the Trustee, the Master Servicer,
the Majority Certificateholder of the Controlling Class and the related
Companion Loan Holder, if a Mortgage Loan is included in any Serviced Whole Loan
is involved, promptly upon its fair value determination and any adjustment
thereto. The Special Servicer shall also deliver to the Master Servicer, the
Majority Certificateholder of the Controlling Class and the related Companion
Loan Holder, if a Mortgage Loan included in any Serviced Whole Loan is involved,
the most recent Appraisal of the related Mortgaged Property then in the Special
Servicer's possession, together with such other third-party reports and other
information then in the Special Servicer's possession that the Special Servicer
reasonably believes to be relevant to the fair value determination with respect
to such Mortgage Loan (such materials are, collectively, the "Determination
Information"). Notwithstanding the foregoing, the Special Servicer shall not be
required to deliver the Determination Information to the Master Servicer, and
shall instead deliver the Determination Information to the Trustee, if the
Master Servicer will not be determining whether the Option Price represents fair
value for the Defaulted Serviced Loan, pursuant to Section 3.18(e). The
reasonable out-of-pocket costs and expenses incurred by the Special Servicer in
making its fair value determination shall be paid and reimbursed as a Servicing
Advance.
In determining the fair value of any Defaulted Serviced Loan, the
Special Servicer shall take into account, among other factors, the period and
amount of the delinquency on such Defaulted Serviced Loan, the occupancy level
and physical condition of the related Mortgaged Property, the state of the local
economy in the area where the Mortgaged Property is located, the time and
expense associated with a purchaser's foreclosing on the related Mortgaged
Property and the expected recoveries from pursuing a work-out or foreclosure
strategy instead of selling the Defaulted Serviced Loan to the Option Holder. In
addition, the Special Servicer shall refer to the Determination Information and
all other relevant information obtained by it or otherwise contained in the
Mortgage File and provided to the Special Servicer; provided that the Special
Servicer shall take account of any change in circumstances regarding the related
Mortgaged Property known to the Special Servicer that has occurred subsequent
to, and that would, in the Special Servicer's reasonable judgment, materially
affect the value of the related Mortgaged Property reflected in, the most recent
related Appraisal. Furthermore, the Special Servicer shall consider all
available objective third-party information obtained from generally available
sources, as well as information obtained from Independent vendors providing real
estate services to the Special Servicer, concerning the market for distressed
real estate loans and the real estate market for the subject property type in
the area where the related Mortgaged Property is located. The reasonable cost of
all third party consultants and related reports, including but not limited to
appraisals, inspection reports and broker opinions of value, reasonably incurred
by the Special Servicer pursuant to this Section 3.18(b) shall constitute, and
be reimbursable as, Servicing Advances. The other parties to this Agreement
shall cooperate with all reasonable requests for information.
(c) At the time a Mortgage Loan becomes a Defaulted Serviced Loan,
the Special Servicer and the Majority Certificateholder of the Controlling Class
(each, together with their assignees, an "Option Holder") will have an
assignable option (the "Purchase Option") to purchase such Defaulted Serviced
Loan, subject to the rights of the related Controlling Holder, if applicable and
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 (which includes the Certificate Administrator Fees), Liquidation
Fees, Workout Fees and Additional Trust Fund Expenses allocable to such
Defaulted Serviced Loan whether recovered or unrecovered from the related
Mortgagor or (B) if the Special Servicer has determined the fair value of such
Defaulted Serviced Loan pursuant to Section 3.18(b), an amount at least equal to
such fair value with respect to any Purchase Option held by the Majority
Certificateholder of the Controlling Class or the Special Servicer only.
Notwithstanding the foregoing, for a period of 90 days after it receives notice
of the Special Servicer's fair value determination and the related expiration
(if any) of the applicable purchase option held by the related A/B Whole Loan
Purchase Option Holder (the "Option Period"), only the Purchase Option held by
the Majority Certificateholder of the Controlling Class may be exercised.
Notwithstanding the foregoing and for the avoidance of doubt, none of the
Majority Certificateholder of the Controlling Class, the related A/B Whole Loan
Purchase Option Holder or the related Mezzanine Loan Holder (with respect to a
Mezzanine Loan), shall be required to pay a Liquidation Fee with respect to any
applicable purchase right under this Agreement or in the applicable
Intercreditor Agreement or with respect to a purchase of a related Defaulted
Serviced Loan at its fair value as determined in this Section 3.18 if such
purchase occurs or purchase right is exercised not later than 90 days from the
date that the Special Servicer has initially determined the fair value for the
related Defaulted Serviced Loan.
Any Option Holder may sell, transfer, assign or otherwise convey its
Purchase Option with respect to any Defaulted Serviced Loan to any party (other
than a Person whose acquisition of the Defaulted Serviced Loan would violate the
terms of any related intercreditor or similar agreement) at any time after the
related Mortgage Loan becomes a Defaulted Serviced Loan. The transferor of any
Purchase Option shall notify the Trustee and the Master Servicer of such
transfer and such notice shall include the transferee's name, address, telephone
number, facsimile number and appropriate contact person(s) and shall be
acknowledged in writing by the transferee.
Notwithstanding the foregoing, the Majority Certificateholder of the
Controlling Class shall have the right to exercise its Purchase Option prior to
any exercise of the Purchase Option by the Special Servicer; provided, however,
if the Purchase Option is not exercised by the Majority Certificateholder of the
Controlling Class or any assignee thereof within 60 days of a Mortgage Loan
becoming a Defaulted Serviced Loan, then the Special Servicer shall have the
right to exercise its Purchase Option prior to any exercise by the Majority
Certificateholder of the Controlling Class and the Special Servicer or its
assignee may exercise such Purchase Option at any time during the 30-day period
immediately following the expiration of such 60-day period. Following the
expiration of each such 30-day period, the Majority Certificateholder of the
Controlling Class shall again have the exclusive right to exercise the Purchase
Option.
Each Option Holder's Purchase Option with respect to any Defaulted
Serviced Loan, if not exercised, will automatically terminate (A) once the
related Defaulted Serviced Loan is no longer a Defaulted Serviced Loan;
provided, however, if such Mortgage Loan subsequently becomes a Defaulted
Serviced Loan, the related Purchase Option shall again be exercisable, (B) upon
the acquisition, by or on behalf of the Trust Fund, of title to the related
Mortgaged Property through foreclosure or deed-in-lieu of foreclosure, (C) upon
the modification or pay-off, in full or at a discount, of such Defaulted
Serviced Loan in connection with a workout, or (D) subject to the Master
Servicer's determination set forth in Section 3.18(e), upon another Option
Holder's exercise of its Purchase Option with respect to the related Mortgage
Loan becoming effective pursuant to Section 3.18(d).
(d) Upon receipt of notice from the Special Servicer indicating that
a Mortgage Loan has become a Defaulted Serviced Loan, and after the expiration
of the Option Period, each Option Holder (whether the original grantee of such
option or any subsequent transferee) may exercise its Purchase Option by
providing the Master Servicer and the Trustee written notice thereof (the
"Purchase Option Notice"), in the form of Exhibit I, which notice shall identify
the Person that, on its own or through an Affiliate, will acquire the related
Mortgage Loan upon closing and shall specify a cash exercise price at least
equal to the Option Price. Immediately upon receipt of such Purchase Option
Notice, the Master Servicer shall notify the remaining Option Holders that a
Purchase Option has been exercised. Within ten days thereafter, each remaining
Option Holder may submit to the Master Servicer and the Trustee a Purchase
Option Notice for the related Defaulted Serviced Loan. Upon the expiration of
such ten-day period, or such sooner time as all remaining Option Holders have
submitted Purchase Option Notices, the Master Servicer shall notify the Option
Holder whose Purchase Option Notice included the highest exercise price that the
exercise of its Purchase Option is effective. The Master Servicer shall also
notify the Trustee of such effective exercise. In the event that more than one
Option Holder exercises its Purchase Option at the same price, the Purchase
Option Notice first received by the Master Servicer shall be effective. The
exercise of any Purchase Option pursuant to this Section 3.18(d) shall be
irrevocable.
(e) If the Special Servicer or any Controlling Class Option Holder,
or any of their respective Affiliates, is identified in the Purchase Option
Notice as the Person expected to acquire the related Mortgage Loan, and the
Option Price is based upon the Special Servicer's fair value determination, the
Master Servicer shall determine whether the Option Price represents fair value
for the Defaulted Serviced Loan, in the manner set forth in Section 3.18(b) and
as soon as reasonably practicable but in any event within 30 days (except as
such period may be extended as set forth in this paragraph) of its receipt of
the Purchase Option Notice and Determination Information from the Special
Servicer. In determining whether the Option Price represents the fair value of
such Defaulted Serviced Loan, the Master Servicer may obtain an opinion as to
the fair value of such Defaulted Serviced Loans, taking into account the factors
set forth in Section 3.18(b), from a Qualified Appraiser or other Independent
expert of recognized standing having experience in evaluating the value of
defaulted mortgage loans, which opinion shall be based on a review, analysis and
evaluation of the Determination Information, and to the extent such Qualified
Appraiser or third party deems any such Determination Information to be
defective, incorrect, insufficient or unreliable, such Person may base its
opinion on such other information it deems reasonable or appropriate, and,
absent manifest error, the Master Servicer may conclusively rely on the opinion
of any such Person that was chosen by the Master Servicer with reasonable care.
Notwithstanding the 30-day time period referenced above in this paragraph, the
Master Servicer will have an additional 15 days to make a fair value
determination if the Person referenced in the immediately preceding sentence has
determined that the Determination Information is defective, incorrect,
insufficient or unreliable. The reasonable costs of all appraisals, inspection
reports and opinions of value, reasonably incurred by the Master Servicer or any
such third party pursuant to this paragraph shall be advanced by the Master
Servicer and shall constitute, and be reimbursable as, Servicing Advances. In
connection with the Master Servicer's determination of fair value, the Special
Servicer shall deliver to the Master Servicer the Determination Information for
the use of the Master Servicer or any such third party.
Notwithstanding anything contained in this Section 3.18(e) to the
contrary, if the Special Servicer or the Majority Certificateholder of the
Controlling Class, or any of their respective Affiliates, is identified in the
Purchase Option Notice as the Person expected to acquire the related Mortgage
Loan, and the Option Price is based upon the Special Servicer's fair value
determination, and the Master Servicer and the Special Servicer are Affiliates,
the Trustee shall determine whether the Option Price represents fair value for
the Defaulted Serviced Loan, in the manner set forth in Section 3.18(b) and as
soon as reasonably practicable but in any event within 30 days (except as such
period may be extended as set forth in this paragraph) of its receipt of the
Purchase Option Notice and Determination Information from the Special Servicer.
In determining whether the Option Price represents the fair value of such
Defaulted Serviced Loan, the Trustee may obtain an opinion as to the fair value
of such Defaulted Serviced Loans, taking into account the factors set forth in
Section 3.18(b), from a Qualified Appraiser or other Independent expert of
recognized standing having experience in evaluating the value of defaulted
mortgage loans, which opinion shall be based on a review, analysis and
evaluation of the Determination Information, and to the extent such Qualified
Appraiser or third party deems any such Determination Information to be
defective, incorrect, insufficient or unreliable, such Person may base its
opinion on such other information it deems reasonable or appropriate, and absent
manifest error, the Trustee may conclusively rely on the opinion of any such
Person that was chosen by the Trustee with reasonable care. Notwithstanding the
30-day time period referenced above in this paragraph, the Trustee will have an
additional 15 days to make a fair value determination if the Person referenced
in the immediately preceding sentence has determined that the Determination
Information is defective, incorrect, insufficient or unreliable. The reasonable
costs of all appraisals, inspection reports and opinions of value, reasonably
incurred by the Trustee or any such third party pursuant to this paragraph shall
be advanced by the Master Servicer and shall constitute, and be reimbursable as,
Servicing Advances. In connection with the Trustee's determination of fair value
the Special Servicer shall deliver to the Trustee the Determination Information
for the use of the Trustee or any such third party.
In the event a designated third party determines that the Option
Price is less than the fair value of the Defaulted Serviced Loan, such party
shall provide its determination, together with all information and reports it
relied upon in making such determination, to the Special Servicer, who shall
then adjust its fair value determination and, consequently, the Option Price,
pursuant to Section 3.18(b). The Special Servicer shall promptly provide written
notice of any adjustment of the Option Price to the Option Holder whose Purchase
Option has been declared effective pursuant to Section 3.18(d). Upon receipt of
such notice, such Option Holder shall have three Business Days to (i) accept the
Option Price as adjusted and proceed in accordance with Section 3.18(f), or (ii)
reject the Option Price as adjusted, in which case such Option Holder shall not
be obligated to close the purchase of the Defaulted Serviced Loan. Upon notice
from such Option Holder, or the Special Servicer, that such Option Holder
rejects the Option Price as adjusted, the Master Servicer and the Trustee shall
provide the notices described in the second paragraph of Section 3.18(f) and
thereafter any Option Holder may exercise its purchase option in accordance with
this Section 3.18, at the Option Price as adjusted.
(f) The Option Holder whose Purchase Option is declared effective
pursuant to Section 3.18(d) shall be required to pay the purchase price
specified in its Purchase Option Notice to the Master Servicer within ten
Business Days of its receipt of the Master Servicer's notice confirming that the
exercise of its Purchase Option is effective. Upon receipt of an Officer's
Certificate from the Master Servicer specifying the date for closing the
purchase of the related Defaulted Serviced Loan, and the purchase price to be
paid therefor, the Trustee shall deliver at such closing for release to or at
the direction of such Option Holder, the related Mortgage File, and shall
execute and deliver such instruments of transfer or assignment, in each case
without recourse, as shall be provided to it by such Option Holder and are
reasonably necessary to vest in the purchaser or any designee thereof the
ownership of such Mortgage Loan. In connection with any such purchase by any
Person other than it, the Special Servicer shall deliver the related Mortgage
File to or at the direction of the purchaser. In any case, the Master Servicer
shall deposit the purchase price into the Certificate Account within one
Business Day following receipt.
The Master Servicer shall immediately notify the Trustee and the
Special Servicer upon the holder of the effective Purchase Option's failure to
remit the purchase price specified in its Purchase Option Notice pursuant to
this Section 3.18(f). Thereafter, the Trustee shall notify each Option Holder of
such failure and any Option Holder may then exercise its purchase option in
accordance with this Section 3.18.
(g) Unless and until the Purchase Option with respect to any
Defaulted Serviced Loan is exercised, the Special Servicer shall pursue such
other resolution strategies with respect to such Defaulted Serviced Loan
including workout, foreclosure and sale of any REO Property, as the Special
Servicer may deem appropriate, consistent with the Asset Status Report and the
Servicing Standard; provided, however, the Special Servicer shall not sell any
Defaulted Serviced Loan (other than in connection with exercise of a related
Purchase Option).
(h) The Special Servicer shall sell a REO Property (other than any
REO Property related to any Non-Serviced Mortgage Loan) in the manner set forth
in Section 3.16(a). The Special Servicer may purchase any REO Property (other
than any REO Property related to any Non-Serviced Mortgage Loan) at the Purchase
Price therefor. The Special Servicer may also offer to sell to any Person any
REO Property (other than any REO Property related to any Non-Serviced Mortgage
Loan), if and when the Special Servicer determines, consistent with the
Servicing Standard, that such a sale would be in the best economic interests of
the Trust Fund. The Special Servicer shall give the Trustee, the Certificate
Administrator, the Master Servicer and the Directing Certificateholder and the
related Companion Loan Holder (if a Serviced Whole Loan is involved), not less
than ten days' prior written notice of its intention to sell any such REO
Property, in which case the Special Servicer shall accept the highest offer
received from any Person for any such REO Property in an amount at least equal
to the Purchase Price therefor. To the extent permitted by applicable law, and
subject to the Servicing Standard, the Master Servicer, an Affiliate of the
Master Servicer, the Special Servicer or an Affiliate of the Special Servicer,
or an employee of any of them may act as broker in connection with the sale of
any such REO Property and may retain from the proceeds of such sale a brokerage
commission that does not exceed the commission that would have been earned by an
independent broker pursuant to a brokerage agreement entered into at arm's
length.
In the absence of any such offer, the Special Servicer shall accept
the highest offer received from any Person that is determined by the Special
Servicer to be a fair price for such REO Property, if the highest offeror is a
Person other than the Special Servicer, the Master Servicer (if the Master
Servicer and Special Servicer are Affiliates) or the Majority Certificateholder
of the Controlling Class, or any of their respective Affiliates, or if such
price is determined to be such a price by the Trustee, if the highest offeror is
the Special Servicer, the Master Servicer (if the Master Servicer and Special
Servicer are Affiliates) or the Majority Certificateholder of the Controlling
Class, or any of their respective Affiliates. Notwithstanding anything to the
contrary herein, none of the Trustee, the Certificate Administrator, in its
individual capacity, or any of its Affiliates may make an offer for or purchase
any such REO Property pursuant hereto.
The Special Servicer shall not be obligated by either of the
foregoing paragraphs or otherwise to accept the highest offer if the Special
Servicer determines, in accordance with the Servicing Standard, that rejection
of such offer would be in the best interests of the Certificateholders. In
addition, the Special Servicer may accept a lower offer if it determines, in
accordance with the Servicing Standard that acceptance of such offer would be in
the best interests of the Certificateholders (for example, if the prospective
buyer making the lower offer is more likely to perform its obligations, or the
terms offered by the prospective buyer making the lower offer are more
favorable).
In determining whether any offer received from the Special Servicer,
the Master Servicer (if the Master Servicer and Special Servicer are Affiliates)
or the Majority Certificateholder of the Controlling Class, or any of their
respective Affiliates represents a fair price for any such REO Property (other
than any REO Property related to any Non-Serviced Mortgage Loan), the Trustee
shall obtain and may conclusively rely on an Appraisal from a Qualified
Appraiser, at the expense of the Trust Fund. In determining whether any offer
constitutes a fair price for any such REO Property, the Trustee (or, if
applicable, such Qualified Appraiser) shall take into account, and any appraiser
shall be instructed to take into account, as applicable, among other factors,
the physical condition of such REO Property, the state of the local economy and
the Trust Fund's obligation to comply with REMIC Provisions.
(i) Subject to the Servicing Standard and the REMIC Provisions, the
Special Servicer shall act on behalf of the Trust Fund in negotiating and taking
any other action necessary or appropriate in connection with the sale of any
such REO Property (other than any REO Property related to any Non-Serviced
Mortgage Loan), including the collection of all amounts payable in connection
therewith. A sale of any such REO Property shall be without recourse to, or
representation or warranty by, the Trustee, the Certificate Administrator, 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, the Trustee or the Certificate Administrator shall have any liability
to the Trust Fund or any Certificateholder with respect to the purchase price
therefor accepted by the Special Servicer or the Trustee.
(j) The Special Servicer shall, within two Business Days following
its receipt of available funds, remit to the Master Servicer the proceeds of any
sale after deduction of the expenses of such sale incurred in connection
therewith for deposit into the Certificate Account. The Trustee, upon receipt of
an Officer's Certificate from the Master Servicer to the effect that such
deposit has been made, shall release or cause to be released to the party or
parties effecting such purchase (or any designee thereof) the related Mortgage
File, and shall execute and deliver such instruments of transfer or assignment,
in each case without recourse, as shall be provided to it and are reasonably
necessary to vest in the purchaser of such Defaulted Serviced Loan effecting
such purchase (or any designee thereof) ownership of such Defaulted Serviced
Loan. In connection with any such purchase, the Special Servicer shall deliver
the related Servicing File to the purchaser of such Defaulted Serviced Loan with
the cooperation of the Master Servicer effecting such purchase (or any designee
thereof).
(k) Subject to Sections 3.18(a) through 3.18(j), the Special
Servicer shall act on behalf of the Trustee in negotiating and taking any other
action necessary or appropriate in connection with the sale of any Defaulted
Serviced Loan or REO Property (other than any REO Property related to any
Non-Serviced Mortgage Loan), and the collection of all amounts payable in
connection therewith. In connection therewith, the Special Servicer may charge
prospective offerors, and may retain, fees that approximate the Special
Servicer's actual costs in the preparation and delivery of information
pertaining to such sales or evaluating offers without obligation to deposit such
amounts into the Certificate Account or if a Serviced Whole Loan is involved, in
the related Serviced Whole Loan Custodial Account; provided no such fees and
charges shall be charged by the Special Servicer to the Controlling Class Option
Holder or any assignee in connection with the sale of Defaulted Serviced Loans.
Any sale of a Defaulted Serviced Loan or any REO Property shall be final and
without recourse to the Trustee or the Trust except as provided in Section
3.18(i), and if such sale is consummated in accordance with the terms of this
Agreement, none of the Depositor, the Special Servicer, the Master Servicer, the
Trustee or the Certificate Administrator 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 Sawgrass Xxxxx Split
Mortgage Loan is subject to the purchase rights (the "Sawgrass Xxxxx Whole Loan
Purchase Option") of the Sawgrass Xxxxx Subordinate Companion Loan Holders (the
"Sawgrass Xxxxx Whole Loan Purchase Option Holder") in accordance with the terms
of and as set forth in Section 8 of the related Intercreditor Agreement. The
Purchase Option with respect to the Xxxxx Xxxxxx Building A/B Mortgage Loan is
subject to the purchase rights (the "Xxxxx Xxxxxx Building A/B Whole Loan
Purchase Option") of the Xxxxx Xxxxxx Building Note B Holder (the "Xxxxx Xxxxxx
Building A/B Whole Loan Purchase Option Holder") in accordance with the terms of
and as set forth in Section 11 of the related Intercreditor Agreement. The
Purchase Option with respect to the Green Oak Village Place A/B Mortgage Loan is
subject to the purchase rights (the "Green Oak Village Place A/B Whole Loan
Purchase Option") of the Green Oak Village Place Note B Holder (the "Green Oak
Village Place A/B Whole Loan Purchase Option Holder") in accordance with the
terms of and as set forth in Section 11 of the related Intercreditor Agreement.
The Purchase Option with respect to the West Hartford Portfolio A/B Mortgage
Loan is subject to the purchase rights (the "West Hartford Portfolio A/B Whole
Loan Purchase Option") of the West Hartford Portfolio Note B Holder (the "West
Hartford Portfolio A/B Whole Loan Purchase Option Holder") in accordance with
the terms of and as set forth in Section 10 of the related Intercreditor
Agreement.
(m) Notwithstanding anything to the contrary herein: (i) each
Mezzanine Lender may be entitled to purchase the related Mortgage Loan in
accordance with the terms and conditions set forth in the related Mezzanine
Intercreditor Agreement, even after it has been purchased out of the Trust Fund
pursuant to this Section 3.18 and (ii) the related Note B Holder may be entitled
to purchase the related A/B Whole Loan in accordance with the terms and
conditions set forth in the related Intercreditor Agreement; even after it has
been purchased out of the Trust Fund pursuant to this Section 3.18. Any purchase
of a Specially Serviced Loan that is purchased pursuant to this Section 3.18
will remain subject to the purchase rights of, in each case if applicable: (1)
the related Mezzanine Lender, if any, as set forth in the related Mezzanine
Intercreditor Agreement and (2) the related Note B Holder as set forth in the
related Intercreditor Agreement with respect to such A/B Whole Loan.
(n) Notwithstanding anything in this Agreement to contrary, in no
event with respect to the Xxxxx Xxxxxx Building A/B Whole Loan, the Green Oak
Village Place A/B Whole Loan or the West Hartford Portfolio A/B Whole Loan will
the related Mortgagor (or any of its affiliates) be permitted to purchase such
Mortgage Loan should such Mortgage Loan become a Defaulted Serviced Loan under
this Agreement.
(o) With respect to each Serviced Whole Loan with a related
Securitized Companion Loan, upon the Trustee having actual knowledge that the
related Mortgage Loan has become a Defaulted Loan, the Trustee shall promptly
send written notice (such notice shall include the option price for such related
Securitized Companion Loan as determined by the Special Servicer based on the
same methodology for determining the fair value of the related Mortgage Loan) to
the applicable trustee under the related Securitized Companion Loan Servicing
Agreement (who shall be instructed to promptly notify, in writing, the
"directing certificateholder" or "controlling class representative" (as defined
in the related Securitized Companion Loan Servicing Agreement) or an analogous
party. Upon receipt of such notice, the purchase option holders designated in
the related Securitized Companion Loan Servicing Agreement shall have the right,
at its option, to purchase the related Securitized Companion Loan from the trust
established pursuant to related Securitized Companion Loan Servicing Agreement
for a price determined by the Special Servicer in accordance with Section 3.18
hereof, with respect to such related Securitized Companion Loan. Such Purchase
Option shall otherwise be on the same terms as the Purchase Option provided to
the Option Holder in Section 3.18(a) mutatis mutandis.
Section 3.19 Additional Obligations of the Master Servicer and the
Special Servicer.
(a) The Master Servicer shall maintain at its Primary Servicing
Office and shall, upon reasonable advance written notice, make available for
review by each Rating Agency and by any Certificateholder or Certificate Owner
or any Person identified to the Master Servicer as a prospective transferee of a
Certificate or an interest therein, copies of the Servicing Files; provided
that, if the Master Servicer in its reasonable, good faith determination
believes that any item of information contained in such Servicing Files is of a
nature that it should be conveyed to all Certificateholders at the same time, it
shall, as soon as reasonably possible following its receipt of any such item of
information, disclose such item of information to the Certificate Administrator
as part of the reports to be delivered to the Certificate Administrator by the
Master Servicer pursuant to Section 4.02(b), and until the Certificate
Administrator has either disclosed such information to all Certificateholders in
a Distribution Date Statement or has properly filed such information with the
Commission on behalf of the Trust under the Exchange Act, the Master Servicer
shall be entitled to withhold such item of information from any
Certificateholder or Certificate Owner or prospective transferee of a
Certificate or an interest therein; and provided, further, the Master Servicer
shall not be required to make particular items of information contained in the
Servicing File for any Loan available to any Person if the disclosure of such
particular items of information is expressly prohibited by applicable law or the
provisions of any related loan documents. Except as set forth in the provisos to
the preceding sentence, copies of all or any portion of any Servicing File are
to be made available by the Master Servicer upon request; however, the Master
Servicer shall be permitted to require payment of a sum sufficient to cover the
reasonable out-of-pocket costs for making such copies (other than with respect
to the Rating Agencies and the Majority Certificateholder of the Controlling
Class). The Special Servicer shall, as to each Specially Serviced Loan and REO
Property (other than any REO Property related to any Non-Serviced Loan),
promptly deliver to the Master Servicer a copy of each document or instrument
added to the related Servicing File, and the Master Servicer shall in no way be
in default under this Section 3.19(a) solely by reason of the Special Servicer's
failure to do so.
In connection with providing access to or copies of the items
described in the preceding paragraph, the Master Servicer may require, unless
the Depositor directs otherwise, (a) in the case of Certificate Owners, a
written confirmation executed by the requesting Person, in form reasonably
satisfactory to the Master Servicer, generally to the effect that such Person is
a beneficial holder of Certificates and will otherwise keep such information
confidential and (b) in the case of a prospective purchaser, confirmation
executed by the requesting Person generally to the effect that such Person is a
prospective purchaser of a Certificate or an interest therein, is requesting the
information for use in evaluating a possible investment in Certificates and will
otherwise keep such information confidential. All Certificateholders, by the
acceptance of their Certificates, shall be deemed to have agreed to keep such
information confidential, except to the extent that the Depositor grants written
permission to the contrary or to the extent such information is public
information. The Master Servicer shall not be liable for the dissemination of
information in accordance with this Section 3.19(a).
(b) Promptly following the occurrence of an Appraisal Trigger Event
with respect to any Mortgage Loan or Serviced Whole Loan (each such Mortgage
Loan or Serviced Whole Loan and any related REO Loan, until it ceases to be such
in accordance with the following paragraph, a "Required Appraisal Serviced
Loan"), the Special Servicer shall obtain (or, if such Required Appraisal
Serviced Loan has a Stated Principal Balance of $2,000,000 or less, at its
discretion, conduct) an Appraisal of the related Mortgaged Property, unless an
Appraisal thereof had previously been obtained (or, if applicable, conducted)
within the preceding 12-month period and there has been no subsequent material
change in the circumstances surrounding the related Mortgaged Property that, in
the judgment of the Special Servicer, would materially affect the value of the
property, and shall deliver a copy of such Appraisal to the Trustee, the
Certificate Administrator, the Master Servicer, the Directing Certificateholder,
the related Companion Loan Holder (if a Serviced Whole Loan is involved) and
(upon request) any Holder of a Non-Registered Certificate (other than a Class 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
Certificate Administrator, the Master Servicer, the Directing Certificateholder,
the related Companion Loan Holder (if a Serviced Whole Loan is involved) and
(upon request) any Holder of a Non-Registered Certificate (other than a Class 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
Certificate Administrator, the Master Servicer, the Directing Certificateholder,
the related Companion Loan Holder (if a Serviced Whole Loan is involved) and
(upon request) any Holder of a Non-Registered Certificate (other than a Class 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 Certificate
Administrator, the Master Servicer, the Directing Certificateholder, the related
Companion Loan Holder or any Controlling Holder, as applicable, related to a
Serviced Whole Loan (subject, in each instance, to Section 12.10(b)) and (upon
request) any Holder of a Non-Registered Certificate (other than a Class 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 Serviced Whole Loan is involved and to the extent so provided in
the applicable Intercreditor Agreement) have the right at any time to require
that the Special Servicer obtain a new Appraisal of the subject Mortgaged
Property in accordance with MAI standards from a Qualified Appraiser selected by
the Special Servicer, at the expense of the requesting party. Upon receipt of
such Appraisal the Special Servicer shall deliver a copy thereof to the Trustee,
the Certificate Administrator, the Master Servicer, the Directing
Certificateholder and the related Companion Loan Holder (if a Serviced Whole
Loan is involved). Promptly following the receipt of, and based upon, such
Appraisal, the Special Servicer shall redetermine and report to the Trustee, the
Certificate Administrator, the Master Servicer, the Directing Certificateholder
and the related Companion Loan Holder (if a Serviced Whole Loan is involved),
the then applicable Appraisal Reduction Amount, if any, with respect to the
subject Required Appraisal Serviced Loan.
(c) The Master Servicer and the Special Servicer shall each deliver
to the other, to the Trustee (but only upon its request), the Certificate
Administrator (but only upon its request), to the Directing Certificateholder
and to the related Companion Loan Holder (if a Serviced Whole Loan is involved),
copies of all Appraisals, environmental reports and engineering reports (or, in
each case, updates thereof) obtained by it with respect to any Mortgaged
Property or REO Property. Upon the request of any Rating Agency or any Holder of
a Non-Registered Certificate (except a Class 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 Certificate
Administrator for deposit into the Distribution Account by 1:30 p.m. (New York
City time) on each Master Servicer Remittance Date, without any right of
reimbursement therefor, a cash payment (a "Compensating Interest Payment") in an
amount equal to the sum of (i) the aggregate amount of Balloon Payment Interest
Shortfalls, if any, incurred in connection with Balloon Payments received in
respect of the Mortgage Pool (other than Mortgage Loans that are Specially
Serviced Loans or Defaulted Loans) during the most recently ended Collection
Period, plus (ii) the lesser of (A) the aggregate amount of Prepayment Interest
Shortfalls, if any, incurred in connection with Principal Prepayments received
in respect of the Mortgage Pool (other than Mortgage Loans that are Specially
Serviced Loans or Defaulted Loans and other than shortfalls arising in
connection with the payment of insurance proceeds or condemnation proceeds)
during the most recently ended Collection Period, and (B) the aggregate of (1)
that portion of its Master Servicing Fees for the related Collection Period that
is, in the case of each and every Loan and REO Loan for which such Master
Servicing Fees are being paid in such Collection Period, calculated at 0.01% per
annum, and (2) all Prepayment Interest Excesses received in respect of the
Mortgage Pool during the most recently ended Collection Period, plus (iii) in
the event that any Principal Prepayment was received on the last Business Day of
the second most recently ended Collection Period, but for any reason was not
included as part of the Master Servicer Remittance Amount for the preceding
Master Servicer Remittance Date (other than because of application of the
subject Principal Prepayment in accordance with Section 3.05(a) for another
purpose), the total of all interest and other income accrued or earned on the
amount of such Principal Prepayment while it is on deposit in the Certificate
Account or, in the case of a Mortgage Loan included in a Whole Loan, Section
3.05(f); provided, however, if a Prepayment Interest Shortfall occurs as a
result of the Master Servicer's allowing the related Borrower to deviate from
the terms of the related loan documents regarding principal prepayments (other
than (v) on a Specially Serviced Loan, (w) a payment of insurance proceeds or
condemnation proceeds, (x) a payment subsequent to a default under the related
loan documents (provided that the Master Servicer reasonably believes that
acceptance of such payment is consistent with the Servicing Standard and has
obtained the consent of the Special Servicer), (y) pursuant to applicable law or
a court order, or (z) at the request or with the consent of the Directing
Certificateholder), then, for purposes of calculating the Compensating Interest
Payment for the subject Collection Period, the amount in clause (ii) of this
paragraph shall be the aggregate of (A) all Master Servicing Fees for such
Collection Period and (B) all Prepayment Interest Excesses and, to the extent
earned on principal prepayments, Net Investment Earnings received by the Master
Servicer during such Collection Period; and provided, further, the rights of the
Certificateholders to offset the aggregate Prepayment Interest Shortfalls shall
not be cumulative.
(f) Except under the same circumstances that it would be permitted
to waive a prepayment lockout provision in the subject Serviced Loan pursuant to
Section 3.20(a), neither the Master Servicer nor the Special Servicer shall
consent to any Mortgagor's prepaying its Loan, partially or in its entirety, if
the Mortgagor would be prohibited from doing so without such consent. In each
case subject to the Servicing Standard and applicable law and to the extent
permitted by the related loan documents, the Master Servicer and the Special
Servicer agree not to accept any Principal Prepayments with respect to any
Serviced Loan on a date other than the then applicable due date therefor except
that the Special Servicer shall be permitted to accept Principal Prepayments
with the consent of the Directing Certificateholder.
(g) The Master Servicer shall not exercise any discretionary right
it has with respect to any Serviced Loan pursuant to the related Mortgage Note
or Mortgage to apply any amounts maintained as an escrow or reserve to the
principal balance of such Serviced Loan except in the case of a default
thereunder.
(h) The Master Servicer shall send written notice to each Borrower
to the effect that, if applicable, the Master Servicer, the Trustee and/or the
Certificate Administrator have been appointed as the "designee" of the lender
under any related Lockbox 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 Certificate
Administrator 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(f), the Master Servicer shall not agree to any modification, waiver
or amendment of any term of, or take any of the other acts referenced in
this Section 3.20(a) with respect to, any Serviced Loan, that would affect
the amount or timing of any related payment of principal, interest or
other amount payable under such Serviced Loan or affect the security for
such Serviced Loan, unless the Master Servicer has obtained the consent of
the Special Servicer (it being understood and agreed that (A) the Master
Servicer shall promptly provide the Special Servicer with notice of any
Mortgagor's request for such modification, waiver or amendment, the Master
Servicer's recommendations and analysis, and with all information
reasonably available to the Master Servicer that the Special Servicer may
reasonably request to withhold or grant any such consent, each of which
shall be provided reasonably promptly in accordance with the Servicing
Standard, (B) the Special Servicer shall decide whether to withhold or
grant such consent in accordance with the Servicing Standard and (C) if
any such request has not been expressly responded to within ten Business
Days (subject to any extensions of applicable time periods required if the
Special Servicer is required by this Agreement to seek the consent of
third parties) of the Special Servicer's receipt from the Master Servicer
of the Master Servicer's recommendations and analysis and all information
reasonably requested thereby and reasonably available to the Master
Servicer, as such time period may be extended if the Special Servicer is
required to seek the consent of the Directing Certificateholder, the
related Companion Loan Holder or any Controlling Holder, as applicable,
related to a Serviced Whole Loan, any mezzanine lender, or the Rating
Agencies, to make an informed decision (or, if the Special Servicer did
not request any information, within ten Business Days from such notice),
such consent shall be deemed to have been granted);
(ii) Subject to the restrictions on extensions in Section
3.20(a)(iv) and (v), the Master Servicer may (with the consent of the
Directing Certificateholder, subject, however, to Section 3.21(f)) extend
the maturity date of any Mortgage Loan (including any Serviced Whole Loan,
if applicable) for up to six months (but not more than two such extensions
by the Master Servicer shall occur);
(iii) other than as provided in Sections 3.02 and 3.08, the Special
Servicer shall not agree to (or, in the case of a Performing Serviced
Loan, consent to the Master Servicer's agreeing to) any modification,
waiver or amendment of any term of, or take (or, in the case of a
Performing Serviced Loan, consent to the Master Servicer's taking) any of
the other acts referenced in this Section 3.20(a) with respect to, any
Serviced Loan that would affect the amount or timing of any related
payment of principal, interest or other amount payable thereunder or, in
the reasonable, good faith judgment of the Special Servicer, would add to,
release, substitute for, or otherwise alter a material amount of the
security for such Serviced Loan, unless a material default on such
Serviced Loan has occurred or, in the reasonable, good faith judgment of
the Special Servicer, a default in respect of payment on such Serviced
Loan is reasonably foreseeable, and such modification, waiver, amendment
or other action is reasonably likely to produce a greater recovery to the
Certificateholders, or if a Serviced Whole Loan is affected, to the
Certificateholders and the related Companion Loan Holder (as a collective
whole and, in the case of a Serviced Whole Loan that is an A/B Whole Loan,
taking into account the subordination of the related Companion Loan) on a
net present value basis than would liquidation;
(iv) the Special Servicer shall not extend (or, in the case of a
Performing Serviced Loan, consent to the Master Servicer's extending) the
date on which any Balloon Payment is scheduled to be due on any Serviced
Loan to a date beyond the earliest of (A) two years prior to the Rated
Final Distribution Date (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 REMIC I or REMIC II;
(vi) subject to applicable law, the related loan documents and the
Servicing Standard, neither the Master Servicer nor the Special Servicer
shall permit any modification, waiver or amendment of any term of any
Serviced Loan unless all related fees and expenses are paid by the related
Mortgagor;
(vii) the Special Servicer shall not permit (or, in the case of a
Performing Serviced Loan, consent to the Master Servicer's permitting) any
Mortgagor to add or substitute any real estate collateral for its Serviced
Loan unless the Special Servicer shall have first determined in its
reasonable, good faith judgment, based upon a Phase I Environmental
Assessment (and any additional environmental testing that the Special
Servicer deems necessary and prudent) conducted by an Independent Person
who regularly conducts Phase I Environmental Assessments, at the expense
of the Mortgagor, that such additional or substitute collateral is in
compliance with applicable environmental laws and regulations and that
there are no circumstances or conditions present with respect to such new
collateral relating to the use, management or disposal of any Hazardous
Materials for which investigation, testing, monitoring, containment,
clean-up or remediation would be required under any then applicable
environmental laws or regulations; and
(viii) the Special Servicer shall not permit the release, including
in connection with a substitution contemplated by clause (vii) of this
Section 3.20(a), of any collateral securing an outstanding Serviced Loan,
except as provided in Section 3.09(d) or Section 3.26, or except where a
Serviced Loan (or, in the case of a Cross-Collateralized Set, where such
entire Cross-Collateralized Set) is satisfied, or except in the case of a
release where (A) either (1) the use of the collateral to be released will
not, in the good faith and reasonable judgment of the Special Servicer,
materially and adversely affect the net operating income being generated
by or the use of the related Mortgaged Property, or (2) there is a
corresponding principal pay down of such Serviced Loan in an amount at
least equal to the appraised value of the collateral to be released (or
substitute collateral with an appraised value at least equal to that of
the collateral to be released, is delivered), (B) the remaining Mortgaged
Property (together with any substitute collateral) is, in the Special
Servicer's good faith and reasonable judgment, adequate security for the
remaining Serviced Loan and (C) such release would not, in and of itself,
result in an Adverse Rating Event with respect to any Class of Rated
Certificates or Companion Loan Securities (as confirmed in writing to the
Trustee by each Rating Agency);
provided that the limitations, conditions and restrictions set forth in clauses
(i) through (viii) of this Section 3.20(a) shall not apply to any act or event
(including, without limitation, a release, substitution or addition of
collateral) in respect of any Serviced Loan that either occurs automatically, or
results from the exercise of a unilateral option by the related Mortgagor within
the meaning of Treasury Regulations Section 1.1001-3(c)(2)(iii), in any event
under the terms of such Serviced Loan in effect on the Closing Date (or, in the
case of a Replacement Mortgage Loan, on the related date of substitution); and
provided, further, notwithstanding clauses (i) through (viii) of this Section
3.20(a), neither the Master Servicer nor the Special Servicer shall be required
to oppose the confirmation of a plan in any bankruptcy or similar proceeding
involving a Mortgagor if, in its reasonable, good faith judgment, such
opposition would not ultimately prevent the confirmation of such plan or one
substantially similar; and provided, further, notwithstanding clause (viii) of
this Section 3.20(a), neither the Master Servicer nor the Special Servicer shall
be required to obtain any confirmation of the Certificate ratings from the
Rating Agencies to grant, or to subordinate the lien of Loans to, easements,
rights-of-way or similar agreements that do not materially affect the use or
value of a Mortgaged Property or the Mortgagor's ability to make any payments
with respect to the related Loan.
(b) Neither the Master Servicer nor the Special Servicer shall have
any liability to the Trust, the Certificateholders and in the case of a Serviced
Whole Loan, the related Companion Loan Holder or any other Person if its
analysis and determination that the modification, waiver, amendment or other
action contemplated by Section 3.20(a) is reasonably likely to produce a greater
recovery to Certificateholders, or if a Serviced Whole Loan is affected, to the
Certificateholders and the related Companion Loan Holder (as a collective whole
and, in the case of a Serviced Whole Loan that is an A/B Whole Loan, taking into
account the subordination of the related Companion Loan) on a net present value
basis than would liquidation, should prove to be wrong or incorrect, so long as
the analysis and determination were made on a reasonable basis by the Special
Servicer or the Master Servicer, as applicable, consistent with the Servicing
Standard. Each such determination shall be evidenced by an Officer's Certificate
to such effect to be delivered by the Special Servicer to the Trustee, the
Directing Certificateholder and the related Companion Loan Holder (if a Serviced
Whole Loan is involved). The Special Servicer shall include with any such
Officer's Certificate the supporting documentation forming the basis for its
conclusion.
(c) Any payment of interest that is deferred pursuant to Section
3.20(a) shall not, for purposes hereof, including, without limitation,
calculating monthly distributions to Certificateholders, be added to the unpaid
principal balance or Stated Principal Balance of the related Serviced Loan,
notwithstanding that the terms of such Serviced Loan so permit or that such
interest may actually be capitalized.
(d) The Master Servicer (as to Performing Serviced Loans) and the
Special Servicer (as to Specially Serviced Loans) each may, as a condition to
its granting any request by a Mortgagor for consent, modification, waiver or
indulgence or any other matter or thing, the granting of which is within the
Master Servicer's or Special Servicer's, as the case may be, discretion pursuant
to the terms of the instruments evidencing or securing the related Serviced Loan
and is permitted by the terms of this Agreement, require that such Mortgagor pay
to it, as additional servicing compensation, a reasonable fee relating to such
consent, modification, waiver or indulgence (not to exceed 1.0% of the unpaid
principal balance of the related Serviced Loan) for the additional services
performed in connection with such request, together with any related costs and
expenses incurred by it; provided that the charging of such fees would not
otherwise constitute a "significant modification" of the Serviced Loan pursuant
to Treasury Regulations Section 1.860G-2(b). All such fees collected by the
Master Servicer and/or the Special Servicer shall be allocable between such
parties, as Additional Master Servicing Compensation and Additional Special
Servicing Compensation, respectively, as provided in Section 3.11.
(e) All modifications, waivers, amendments and other actions entered
into or taken in respect of the Serviced Loans pursuant to the preceding
subsections of this Section 3.20 shall be in writing. Each of the Master
Servicer and the Special Servicer shall notify the other such party, the
Trustee, the Certificate Administrator, the Directing Certificateholder and the
related Companion Loan Holder (if a Serviced Whole Loan is involved), in
writing, of any modification, waiver, amendment or other action entered into or
taken in respect of any Serviced Loan pursuant to this Section 3.20 and the date
thereof, and shall deliver to the Trustee or the related Custodian for deposit
into the related Mortgage File (with a copy to the other such party), an
original counterpart of the agreement relating to such modification, waiver,
amendment or other action, promptly (and in any event within ten Business Days)
following the execution thereof. In addition, following the execution of any
modification, waiver or amendment agreed to by the Special Servicer pursuant to
Section 3.20(a), the Special Servicer shall deliver to the Master Servicer and
the Trustee an Officer's Certificate setting forth in reasonable detail the
basis of the determination made by it pursuant to clause (ii) of Section
3.20(a).
(f) 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 contrary and subject the limitations of
Section 3.21(f), 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 ratings or Companion Loan Securities ratings from the Rating
Agencies (unless otherwise set forth in the related Intercreditor Agreement with
respect to a Serviced Whole Loan) to approve the following modifications,
waivers or amendments of the Loans: (i) waivers of minor covenant defaults
(other than financial covenants), including late financial statements; (ii)
releases of (A) non-material parcels of a Mortgaged Property, including in
connection with a pending or threatened condemnation; (B) parcels of a Mortgaged
Property not given any value in the underwriting of the Loan; or (C) similar
non-material parcels of a Mortgaged Property; (iii) grant, or subordinate the
lien of Loans to, easements, rights-of-way or similar agreements that do not
materially affect the use or value of a Mortgaged Property or the Mortgagor's
ability to make any payments with respect to the related Loan; and (iv) other
routine approvals, including the granting of subordination, non-disturbance and
attornment agreements and leasing consents, typically performed by a Master
Servicer on a routine basis.
(h) In connection with granting an extension of the maturity date of
any Serviced Loan in accordance with Section 3.20(a), the Special Servicer, in
the case of a Specially Serviced Loan, and the Master Servicer, in the case of a
Performing Serviced Loan, shall each cause the related Mortgagor to agree, if it
has not already done so pursuant to the existing loan documents, to thereafter
deliver to the Special Servicer, the Certificate Administrator, the Directing
Certificateholder and the related Companion Loan Holder (if a Serviced Whole
Loan is involved) audited operating statements on a quarterly basis with respect
to the related Mortgaged Property, provided that the Special Servicer or the
Master Servicer, as the case may be, may, in its sole discretion, waive the
requirement that such statements be audited.
(i) If the Master Servicer or the Special Servicer collects a
modification fee or a modification application fee in connection with a
modification or proposed modification of a Serviced Loan, then the Master
Servicer or the Special Servicer, as applicable, will apply that fee to cover
the costs and expenses associated with that modification or proposed
modification that are not otherwise paid by the related Mortgagor and that would
otherwise be payable or reimbursable out of the Trust Fund, including any Rating
Agency fees and expenses. Any remaining portion of such modification fee (such
remaining portion, a "Net Modification Fee") or of such modification application
fee (such remaining portion, a "Net Modification Application Fee") will be
applied as additional compensation to the Master Servicer or the Special
Servicer in accordance with Section 3.11.
Section 3.21 Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping; Asset Status Report; Directing
Certificateholder.
(a) Upon determining that a Servicing Transfer Event has occurred
with respect to any Loan, the Master Servicer shall immediately give notice
thereof to the Directing Certificateholder and the related Companion Loan Holder
(if a Serviced Whole Loan is involved), and deliver the related Servicing File
to the Special Servicer and shall use its best efforts to provide the Special
Servicer with all information, documents (or copies thereof) and records
(including records stored electronically on computer tapes, magnetic discs and
the like) relating to the Serviced Loan and reasonably requested by the Special
Servicer to enable it to assume its functions hereunder with respect thereto
without acting through a Sub-Servicer. Notwithstanding anything in Section
2.01(b) or any other provision of this Agreement to the contrary, the copying
and delivery of such documents, instruments, items, records and information
shall not be at the expense of the Special Servicer. At its option, although its
Sub-Servicing Agreement is temporarily suspended, the related Sub-Servicer,
without any compensation therefor (unless otherwise stated in the related
Sub-Servicing Agreement), may retain Loans on its computer systems while such
Loans are Specially Serviced Loans, provided that no Sub-Servicer shall take any
action with respect thereto so long as such Loan is a Specially Serviced Loan
(unless otherwise stated in the related Sub-Servicing Agreement) and provided
that the Master Servicer shall assume all the Master Servicing duties with
respect to that Loan as provided in the second succeeding paragraph. The Master
Servicer shall use its best efforts to comply with the third preceding sentence
within five Business Days of the occurrence of each related Servicing Transfer
Event. The Master Servicer shall deliver to each Holder of a Non-Registered
Certificate (except a Class 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 Serviced Whole Loan is involved), and return the
related Servicing File to the Master Servicer within five Business Days and upon
giving such notice and returning such Servicing File, to the Master Servicer,
the Special Servicer's obligation to service such Loan, and the Special
Servicer's right to receive the Special Servicing Fee with respect to such Loan,
shall terminate, and the obligations of the Master Servicer to service and
administer such Loan shall resume.
Notwithstanding other provisions in this Agreement to the contrary,
the Master Servicer shall remain responsible for the accounting, data
collection, reporting and other basic Master Servicer administrative functions
with respect to the Specially Serviced Loans, provided that the Master Servicer
shall establish reasonable procedures as to the application of Special Servicer
receipts and tendered payments, and the Special Servicer shall have the
exclusive responsibility for and authority over all contacts (including
collection, which information shall be provided by the Master Servicer) with and
notices to Mortgagors and similar matters relating to each Specially Serviced
Loan and the related Mortgaged Property.
Also notwithstanding anything herein to the contrary, in connection
with the transfer to the Special Servicer of the servicing, subject to Section
2.03, of a Cross-Collateralized Mortgage Loan as a result of a Servicing
Transfer Event or the reassumption of servicing responsibilities by the Master
Servicer with respect to any such Serviced Loan upon its becoming a Corrected
Serviced Loan, the Master Servicer and the Special Servicer shall each transfer
to the other, as and when applicable, the servicing of all other
Cross-Collateralized Mortgage Loans constituting part of the same
Cross-Collateralized Set; provided that no Cross-Collateralized Mortgage Loan
may become a Corrected Serviced Loan at any time that a continuing Servicing
Transfer Event exists with respect to another Cross-Collateralized Mortgage Loan
in the same Cross-Collateralized Set.
(b) In servicing any Specially Serviced Loans, the Special Servicer
shall provide to the Trustee the originals, of documents contemplated by the
definition of "Mortgage File" and generated while such Serviced Loan is a
Specially Serviced Loan, for inclusion in the related Mortgage File (with a copy
of each such original to the Master Servicer), and provide to the Master
Servicer copies of any additional related Serviced Loan information, including
correspondence with the related Mortgagor generated while such Serviced Loan is
a Specially Serviced Loan.
(c) Notwithstanding anything in this Agreement to the contrary, in
the event that the Master Servicer and the Special Servicer are the same Person,
all notices, certificates, information, consents and documents required to be
given or delivered by the Master Servicer to the Special Servicer or vice versa
shall be deemed to be given or delivered, as the case may be, without the
necessity of any action on such Person's part.
(d) No later than 45 days after the date the servicing of a Serviced
Loan is transferred from the Master Servicer to the Special Servicer pursuant to
the terms of this Agreement, the Special Servicer shall deliver to each Rating
Agency, the Master Servicer, the Trustee, the Certificate Administrator, the
related Companion Loan Holder (if a Serviced Whole Loan is involved), and the
Directing Certificateholder a report (the "Asset Status Report") with respect to
such Serviced Loan and the related Mortgaged Property. Such Asset Status Report
shall set forth the following information to the extent reasonably determinable:
(i) a summary of the status of such Specially Serviced Loan and any
negotiations with the related Mortgagor;
(ii) a discussion of the legal and environmental considerations
reasonably known to the Special Servicer (including without limitation by
reason of any Phase I Environmental Assessment and any additional
environmental testing contemplated by Section 3.09), consistent with the
Servicing Standard, that are applicable to the exercise of remedies set
forth herein and to the enforcement of any related guaranties or other
collateral for the related Serviced Loan and whether outside legal counsel
has been retained;
(iii) the most current rent roll and income or operating statement
available for the related Mortgaged Property;
(iv) the Special Servicer's recommendations on how such Specially
Serviced Loan might be returned to performing status and returned to the
Master Servicer for regular servicing or otherwise realized upon;
(v) the Appraised Value of the Mortgaged Property together with the
assumptions used in the calculation thereof (which the Special Servicer
may satisfy by providing a copy of the last obtained Appraisal); and
(vi) such other information as the Special Servicer deems relevant
in light of the Servicing Standard.
If within ten Business Days of receiving an Asset Status Report, the
Directing Certificateholder (except with respect to an A/B Whole Loan) or the
related Controlling Holder (if an A/B Whole Loan, is involved), does not
disapprove such Asset Status Report in writing, the Special Servicer shall
implement the recommended action as outlined in such Asset Status Report;
provided, however, the Special Servicer may not take any action that is contrary
to applicable law, the Servicing Standard or the terms of the applicable loan
documents; provided, further if the Special Servicer determines that the failure
to take any action set forth in such Asset Status Report would violate the
Servicing Standard, the Special Servicer may implement the recommended action
outlined in such Asset Status Report without waiting for the Directing
Certificateholder's or the related Controlling Holder's (if an A/B Whole Loan,
is involved) response. If the Directing Certificateholder or the related
Controlling Holder (if an A/B Whole Loan, is involved) disapproves such Asset
Status Report, the Special Servicer will revise such Asset Status Report and
deliver to the Directing Certificateholder or the related Controlling Holder (if
an A/B Whole Loan, is involved), the Rating Agencies, the Trustee, the
Certificate Administrator and the Master Servicer a new Asset Status Report as
soon as practicable, but no later than 30 days after such disapproval. The
Special Servicer shall revise such Asset Status Report as described above in
this Section 3.21(d) until the earlier of (x) the delivery by the Directing
Certificateholder or the related Controlling Holder (if an A/B Whole Loan, is
involved), as applicable, of an affirmative approval in writing of such revised
Asset Status Report, (y) the failure of the Directing Certificateholder or the
related Controlling Holder (if an A/B Whole Loan, is involved), as applicable,
to disapprove such revised Asset Status Report in writing within ten Business
Days of its receipt thereof; or (z) the passage of 90 days from the date of
preparation of the initial version of the Asset Status Report. Following the
earliest of such events, and subject to the terms of Section 3.20, the Special
Servicer shall implement the recommended action as outlined in the most recent
version of such Asset Status Report (provided that the Special Servicer shall
not take any action that is contrary to applicable law or the terms of the
applicable loan documents or that violates the Servicing Standard or fail to
take any action, if the failure to take such action would violate the Servicing
Standard). The Special Servicer may, from time to time, modify any Asset Status
Report it has previously delivered and implement the new action in such revised
report so long as such revised report has been prepared, reviewed and either
approved or not rejected as provided above. For the avoidance of doubt, any
action to be taken (or not taken) by the Special Servicer with respect to an
Asset Status Report must be in all respects consistent with the Servicing
Standard and applicable law. The Special Servicer shall have the authority to
meet with the Mortgagor for any Specially Serviced Loan and take such actions
consistent with the Servicing Standard and the related Asset Status Report. The
Special Servicer shall not take any action inconsistent with the related Asset
Status Report, unless such action would be required to act in accordance with
the Servicing Standard.
(e) The Special Servicer or the Master Servicer, as applicable,
shall provide the Directing Certificateholder and the related Controlling Holder
(if an A/B Whole Loan, is involved), as applicable, with not less than ten
Business Days' prior notice (except as provided in Section 3.08(a)) of any
Special Action (as described below) that the Special Servicer or the Master
Servicer, as applicable, proposes to take and, in the case of the Special Action
described in clause (vi) in this Section 3.21(e), the Special Servicer shall
also contemporaneously notify the Master Servicer; provided, however, if a
shorter period of notice is necessary to avoid the occurrence of an Adverse
REMIC Event or a violation of Section 3.21(f), then the required period of
notice shall be such shorter period.
The Directing Certificateholder (except with respect to any A/B
Whole Loan) or the related Controlling Holder (if an A/B Whole Loan, is
involved), as applicable, shall be entitled to advise the Special Servicer with
respect to any Special Action, and notwithstanding anything to the contrary
contained herein, the Special Servicer shall not take any Special Action or
consent to the taking of any Special Action if the Directing Certificateholder
(except with respect to any A/B Whole Loan) or the related Controlling Holder
(if an A/B Whole Loan, is involved), as applicable, has objected thereto by the
close of business on the tenth Business Day following its receipt of notice
thereof, or if a shorter period was necessitated in accordance with the
preceding sentence, by the close of business on the date on which such shorter
period expires (it being understood that the failure of the Directing
Certificateholder (except with respect to any A/B Whole Loan) or the related
Controlling Holder (if an A/B Whole Loan, is involved), as applicable, to
respond in the time frame set forth in the Approval Provisions shall be deemed
to constitute such party's approval of such action); provided, however, that (i)
the ability of the Directing Certificateholder (except with respect to any A/B
Whole Loan) or the related Controlling Holder (if an A/B Whole Loan, is
involved), as applicable, to so advise or object shall in all events be subject
to Section 3.21(f) and shall not violate the provisions of the Mezzanine
Intercreditor Agreement (with respect to any Mortgage Loan with a related
Mezzanine Loan), (ii) the Master Servicer or the Special Servicer, as
applicable, shall not follow any such advice or objection that would result in a
violation of this Agreement, including Section 3.21(f), the loan documents, any
Intercreditor Agreement or applicable laws or otherwise result in an Adverse
REMIC Event or violate the provisions of the Mezzanine Intercreditor Agreement
(with respect to any Mortgage Loan with a related Mezzanine Loan) and (iii) if
(a) the Directing Certificateholder or the related Controlling Holder (if an A/B
Whole Loan, is involved), as applicable, (b) the Special Servicer or Master
Servicer, as applicable, together cannot agree within 10 Business Days upon a
course of action with respect to any Special Action, then the Special Servicer
or Master Servicer, as applicable, shall implement its proposed course of action
and (c) if the Master Servicer or the Special Servicer determines that immediate
action is necessary in accordance with the Servicing Standard, it may take such
action prior to the expiration of the ten Business Day period. Subject to the
foregoing, in connection with the implementation of any Special Action or the
extension of the maturity date of a Serviced Loan, the Master Servicer or
Special Servicer shall comply with the Approval Provisions, as applicable. For
purposes hereof, "Special Action" means each of the following actions:
(i) any proposed or actual foreclosure upon or comparable conversion
(which may include acquisitions of a REO Property) of the ownership of
properties securing such of the Specially Serviced Loans as come into and
continue in default;
(ii) any modification or waiver of a Serviced Loan;
(iii) any proposed or actual sale of a Defaulted Serviced Loan or
REO Property (other than in connection with the termination of the Trust
Fund or pursuant to Section 3.18);
(iv) any determination to bring a REO Property into compliance with
applicable environmental laws or to otherwise address Hazardous Materials
located at a REO Property;
(v) any acceptance of substitute or additional collateral for a
Serviced Loan unless the lender is required to accept such collateral by
the underlying loan documents and any release of the real estate
collateral securing the Serviced Loan (except as permitted by clause (ii)
of Section 3.20(g));
(vi) any waiver of a "due-on-sale" clause (except as set forth in
Section 3.08(a)) or "due-on-encumbrance" clause;
(vii) any acceptance or approval of acceptance or consent to
acceptance of an assumption agreement releasing a borrower from liability
under a Serviced Loan (except as set forth in Section 3.08(a));
(viii) any acceptance of a discounted payoff of a Serviced Loan;
(ix) any release of earnout reserve funds (other than as expressly
required, with no lender discretion and/or is automatic, under the related
loan documents);
(x) the release of any letters of credit (other than as expressly
required, with no lender discretion and/or is automatic, under the related
loan documents);
(xi) any approval of a material lease (in excess of 30% 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, the Certificate Administrator or their officers, directors, employees
or agents to any claim, suit or liability, or (D) materially expand the scope of
the Special Servicer's or the Master Servicer's responsibilities under this
Agreement (the "Prohibited Actions"), and (ii) in no event shall the Master
Servicer or the Special Servicer take any action or refrain from taking any
action if the taking of such action or the refraining from taking of such action
would violate the Servicing Standard or the REMIC Provisions. The Master
Servicer or Special Servicer, as applicable, shall disregard any such direction,
failure to approve or objection.
The Directing Certificateholder shall have no liability to the
Certificateholders (other than the holders of the Controlling Class) and the
related Controlling Holder (if an A/B Whole Loan, is involved) shall have no
liability to the Certificateholders (including the holders of the Controlling
Class) for any action taken, or for refraining from the taking of any action,
pursuant to this Agreement, or for errors in judgment; provided, however, the
Directing Certificateholder or the related Controlling Holder (if an A/B Whole
Loan, is involved), as applicable, will not be protected against any liability
to any Holder of the Controlling Class would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in the performance of duties or by
reason of reckless disregard of obligations or duties. By its acceptance of a
Certificate, each Certificateholder confirms its understanding that the
Directing Certificateholder or the related Controlling Holder (if an A/B Whole
Loan, is involved), as applicable, may take actions that favor the interests of
one or more Classes of the Certificates over other Classes of the Certificates,
and that the Directing Certificateholder or the related Controlling Holder (if
an A/B Whole Loan, is involved), as applicable, may have special relationships
and interests that conflict with those of Holders of some Classes of the
Certificates, that the Directing Certificateholder or the related Controlling
Holder (if an A/B Whole Loan, is involved), as applicable, may act solely in the
interests of the Holders of the Controlling Class, that none of the Directing
Certificateholder or any Controlling Holder (if an A/B Whole Loan, is involved),
as applicable, has any duties to the Holders of any Class of Certificates other
than the Controlling Class, that none of the Directing Certificateholder or any
Controlling Holder (if a Whole Loan is involved), as applicable, shall be deemed
to have been negligent or reckless, or to have acted in bad faith or engaged in
willful misfeasance, by reason of its having acted solely in the interests of
the holders of the Controlling Class that none of the Directing
Certificateholder or any Controlling Holder (if an A/B Whole Loan, is involved),
as applicable, shall have any liability whatsoever for having so acted, and no
Certificateholder may take any action whatsoever against the Directing
Certificateholder or any Controlling Holder (if an A/B Whole Loan, is involved),
as applicable, or any director, officer, employee, agent or principal thereof
for having so acted.
(g) With respect to each Serviced Whole Loan, notwithstanding
anything to the contrary contained herein (but subject to Section 3.21(f)) and
the related Intercreditor Agreement): (i) the Special Servicer shall be required
to consult with the related Controlling Holder upon the occurrence of any event
of default under such Serviced Whole Loan, to consider alternative actions
recommended by such Controlling Holder and to consult with such Controlling
Holder with respect to determinations made pursuant to Section 3.09 or Section
3.18 and (ii) at any time (whether or not any event of default under such
Serviced Whole Loan has occurred) the Master Servicer and the Special Servicer
shall be required to consult with such Controlling Holder to the extent that the
related loan documents grant the lender the right to approve budgets for the
related Mortgaged Property, prior to approving any such budget.
(h) In connection with any proposed Special Action, the Special
Servicer shall prepare a summary of such proposed Special Action and an analysis
of whether or not such Special Action is reasonably likely to produce a greater
recovery on a present value basis than not taking such action or making such
determination and shall provide to the Directing Certificateholder or the
related Controlling Holder, as applicable, such summary and such information as
is in its possession or control and is reasonably requested by the Directing
Certificateholder or the related Controlling Holder, as applicable, as may be
necessary in the reasonable judgment of the Directing Certificateholder or the
related Controlling Holder, as applicable, in order to make a determination with
respect to such Special Action.
The Master Servicer or Special Servicer shall provide to the
Directing Certificateholder or the related Controlling Holder, as applicable, by
hard copy or by electronic means concurrently with the delivery thereof to the
related Borrower, copies of any notice of an event of default under the related
loan documents and any other notices sent to such Borrower with respect to
foreclosure or other exercise of remedies or enforcement, modification or waiver
with respect to the related Mortgage Loan or the related Mortgaged Property.
The Master Servicer or the Special Servicer shall also provide to
the Directing Certificateholder or the related Controlling Holder, as
applicable, by hard copy, electronic means or by other means agreed to by the
Directing Certificateholder or such Controlling Holder, as applicable, and the
Master Servicer or the Special Servicer (A) within 30 days of receipt thereof,
copies of any financial statements, certificates, correspondence, notices, bills
or reports with respect to the related Borrower or Mortgaged Property that were
delivered pursuant to, or to which the mortgagee or lender would be entitled to
under, the terms of the related loan documents, (B) within 30 days following the
receipt thereof by the Master Servicer or the Special Servicer monthly operating
statements and rent rolls for the related Mortgaged Property and (C) within 30
days following the receipt thereof by the Master Servicer or the Special
Servicer annual operating statements and rent rolls for the related Mortgaged
Property.
The expense of providing information (except for any notice of an
event of default) and summaries pursuant to this Section 3.21(h) shall be an
expense of the Directing Certificateholder or the related Controlling Holder, as
applicable, and shall not be an expense of the Trust Fund.
Section 3.22 Sub-Servicing Agreements.
(a) The Master Servicer and the Special Servicer (in the case of the
Special Servicer, with the consent of the Directing Certificateholder) may each
enter into Sub-Servicing Agreements to provide for the performance by third
parties of any or all of its obligations hereunder, provided that, in each case,
the Sub-Servicing Agreement: (i) insofar as it affects the Trust and the related
Companion Loan Holder (in the case of a Pari Passu Whole Loan) or the related
Controlling Holder (in the case of an A/B Whole Loan), as applicable, is
consistent with this Agreement in all material respects; (ii) expressly or
effectively provides that if the Master Servicer or Special Servicer, as the
case may be, shall for any reason no longer act in such capacity hereunder
(including, without limitation, by reason of an Event of Default), any successor
to the Master Servicer or the Special Servicer, as the case may be, hereunder
(including the Trustee if the Trustee has become such successor pursuant to
Section 7.02) may thereupon either assume all of the rights and, except to the
extent they arose prior to the date of assumption, obligations of the Master
Servicer or Special Servicer, as the case may be, under such agreement or,
except with respect to those Sub-Servicing Agreements listed on Schedule II and
subject to the provisions of Section 3.22(d), terminate such rights and
obligations; (iii) in the case of a Sub-Servicing Agreement entered into by the
Master Servicer, expressly or effectively provides that such agreement shall be
suspended as to servicing actions with respect to any Serviced Loan serviced
thereunder at the time such Serviced Loan becomes a Specially Serviced Loan
unless such Serviced Loan is then sub-serviced by Midland Loan Services, Inc. or
its permitted successors and assigns pursuant to such Sub-Servicing Agreement
(but only until such time as such Serviced Loan becomes a Corrected Serviced
Loan); (iv) in the case of a Sub-Servicing Agreement entered into by the Special
Servicer, relates only to Specially Serviced Loans or REO Properties and
expressly or effectively provides that such agreement shall terminate with
respect to any such Serviced Loan that becomes a Corrected Serviced Loan; (v) in
the case of a Sub-Servicing Agreement entered into by the Master Servicer,
provides that the related Sub-Servicer shall comply with all reasonable requests
for additional information made by the Master Servicer (provided, however, the
related Sub-Servicer shall not be required to furnish the same information to
the Master Servicer more than once) and, further, provides that the failure of
the related Sub-Servicer to furnish the Master Servicer on a timely basis with
any required reports, statements or other information, including without
limitation, the reports referred to in Section 3.12(a), either (A) shall permit
the Master Servicer to make necessary inquiries of the related borrower directly
or (B) shall (subject to a cure period not to exceed 60 days) constitute an
event of default thereunder for which the Master Servicer may terminate such
Sub-Servicer without payment of any termination fee (it being understood that
notwithstanding anything to the contrary in this clause (v), the obligations of
a Sub-Servicer in respect of Section 3.12(b) may be limited to the provision of
reports as agreed between the Master Servicer and such Sub-Servicer and response
to reasonable inquiries from the Master Servicer with respect thereto); (vi)
subject to Section 3.08 and Section 3.20(g), does not authorize any Sub-Servicer
to approve a modification or assumption of any Serviced Loan without the
approval of the Master Servicer, in the case of Performing Serviced Loans or of
the Special Servicer, in the case of Specially Serviced Loans or authorizes the
Sub-Servicer to foreclose any Serviced Loan without the approval of the Special
Servicer; (vii) imposes no liability whatsoever on the Trustee, the Certificate
Administrator or the Certificateholders, the related Companion Loan Holder (in
the case of a Pari Passu Whole Loan) or the related Controlling Holder (in the
case of an A/B Whole Loan), with respect to anything contained therein
(provided, that nothing herein shall preclude the Master Servicer or the Special
Servicer from seeking any indemnification that it would be otherwise entitled to
under this Agreement); (viii) provides that the Master Servicer and the Special
Servicer each shall pay the fees of any Sub-Servicer retained by it in
accordance with the respective Sub-Servicing Agreement and, in any event, from
its own funds; and (ix) contain events of default materially similar to an Event
of Default hereunder for the Master Servicer and/or the Special Servicer, as the
case may be. References in this Agreement to actions taken or to be taken by the
Master Servicer or the Special Servicer, as the case may be, include actions
taken or to be taken by a Sub-Servicer on behalf of the Master Servicer or the
Special Servicer, as the case may be; and, in connection therewith, all amounts
advanced by any Sub-Servicer to satisfy the obligations of the Master Servicer
hereunder to make Advances shall be deemed to have been advanced by the Master
Servicer out of its own funds and, accordingly, such Advances shall be
recoverable by such Sub-Servicer in the same manner and out of the same funds as
if such Sub-Servicer were the Master Servicer, and, for so long as they are
outstanding, such Advances shall accrue interest in accordance with Section
3.11(g) and/or Section 4.03(d), such interest to be allocable between the Master
Servicer and such Sub-Servicer as they may agree. For purposes of this
Agreement, the Master Servicer and the Special Servicer each shall be deemed to
have received any payment when a Sub-Servicer retained by it receives such
payment. The Master Servicer and the Special Servicer each shall notify the
other such party, the Trustee, the Certificate Administrator, the related
Companion Loan Holder (in the case of a Pari Passu Whole Loan), the related
Controlling Holder (in the case of an A/B Whole Loan) and the Depositor in
writing promptly of the appointment by it of any Sub-Servicer, and shall deliver
to the Trustee copies of all Sub-Servicing Agreements, and any amendments
thereto and modifications thereof, entered into by it promptly upon its
execution and delivery of such documents.
(b) Each Sub-Servicer actually performing servicing functions (i)
shall be authorized to transact business in the state or states in which the
Mortgaged Properties for the Serviced Loans it is to service are situated, if
and to the extent required by applicable law, and (ii) 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, the Certificate Administrator and the Certificateholders, the
related Companion Loan Holder (in the case of a Pari Passu Whole Loan) and the
related Controlling Holder (in the case of an A/B Whole Loan) shall (at no
expense to the Trustee, the Certificate Administrator, the Certificateholders,
the Trust, the related Companion Loan Holder (in the case of a Pari Passu Whole
Loan) or the related Controlling Holder (in the case of an A/B Whole Loan) each
monitor the performance and enforce the obligations of its Sub-Servicers under
the related Sub-Servicing Agreements. Such enforcement, including, without
limitation, the legal prosecution of claims, termination of Sub-Servicing
Agreements in accordance with their respective terms and the terms of this
Agreement, and the pursuit of other appropriate remedies, shall be in such form
and carried out to such an extent and at such time as the Master Servicer or the
Special Servicer, as the case may be, in its reasonable business judgment, would
require were it the owner of the Serviced Loans. Promptly upon becoming aware of
a default under any Sub-Servicing Agreement to which it is a party, the Master
Servicer or the Special Servicer, as the case may be, shall notify each of the
other parties hereto, the Trustee, the Certificate Administrator and the related
Companion Loan Holder (in the case of a Pari Passu Whole Loan) and the related
Controlling Holder (in the case of an A/B Whole Loan), and then the Trustee
shall provide a copy of such notice to the Directing Certificateholder, and, in
accordance with Section 8.12(b), shall, upon request, provide a copy of such
notice to each Holder of a Non-Registered Certificate (except a Class 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, Section 11.10 and/or Section 11.11 to the
Rating Agencies and the Directing Certificateholder (and the related Controlling
Holder in the case of an A/B Whole Loan).
Section 3.23 Designation of the Special Servicer by the Majority
Certificateholder of the Controlling Class or the Controlling Holder.
(a) The Majority Certificateholder of the Controlling Class may at
any time and from time to time terminate (with or without cause) and replace any
existing Special Servicer or any Special Servicer that has resigned or otherwise
ceased to serve as Special Servicer (other than with respect to any A/B Whole
Loan). Such Majority Certificateholder shall so designate a Person to so serve
by the delivery to the Trustee of a written notice stating such designation. The
Trustee shall, promptly after receiving any such notice, so notify the Rating
Agencies. The designated Person shall become the Special Servicer as of the date
the Trustee shall have received: (i) written confirmation from each Rating
Agency stating that if the designated Person were to serve as Special Servicer
hereunder, none of the then current ratings assigned by such Rating Agency to
the respective Classes of the Certificates would be downgraded, qualified (if
applicable) or withdrawn as a result thereof; (ii) a written acceptance of all
obligations of the Special Servicer under this Agreement, executed by the
designated Person; and (iii) an Opinion of Counsel (at the expense of the Person
designated to become the Special Servicer) to the effect that the designation of
such Person to serve as Special Servicer is in compliance with this Section
3.23, that upon the execution and delivery of the written acceptance referred to
in the immediately preceding clause (ii), the designated Person shall be bound
by the terms of this Agreement and that this Agreement shall be enforceable
against the designated Person in accordance with its terms. The existing Special
Servicer shall be deemed to have resigned simultaneously with such designated
Person's becoming the Special Servicer hereunder; provided, however, that (i)
the terminated or resigned, as applicable, Special Servicer shall continue to be
entitled to receive all amounts accrued or owing to it under this Agreement on
or prior to the effective date of such resignation, whether in respect of
Servicing Advances or otherwise, (ii) it shall be entitled to certain Workout
Fees thereafter received to the extent permitted by Section 3.11(c), and (iii)
it and its directors, officers, employees and agents shall continue to be
entitled to the benefits of Section 6.03, notwithstanding any such termination
or resignation. Such terminated Special Servicer shall cooperate with the
Trustee and the replacement Special Servicer in effecting the termination of its
responsibilities and rights hereunder, including, without limitation, the
transfer within two Business Days to the replacement Special Servicer for
administration by it of all cash amounts that shall at the time be or should
have been credited by the terminated Special Servicer to the REO Account or
delivered to the Master Servicer or that are thereafter received by the
terminated Special Servicer with respect to Specially Serviced Loans and REO
Properties and the execution and delivery of such documents acknowledging its
termination as Special Servicer as may be required by any Rating Agency. The
Majority Certificateholder of the Controlling Class shall be responsible for
paying any costs associated with such replacement, including the reasonable
costs of any servicing transfer.
(b) Solely with respect to an A/B Whole Loan, 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, the
Certificate Administrator, 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) the Mortgage Loan Seller with
respect to information relating to the Loans transferred into the Trust by the
Mortgage Loan Seller; (iv) a potential purchaser of servicing rights hereunder
that has agreed to keep such information confidential; (v) to the extent the
Master Servicer or Special Servicer deems such disclosure to be reasonably
necessary in carrying out its duties pursuant to this Agreement or any
Sub-Servicing Agreement; (vi) to the extent such information is publicly
available or otherwise available from sources unrelated to this transaction;
(vii) to the extent such disclosure is required by law or court order or is
demanded pursuant to a subpoena; (viii) to the extent such information is
required to be delivered to third parties (including, without limitation,
property inspectors, tax service companies, insurance carriers, and data systems
vendors) in connection with the performance of the Master Servicer's or the
Special Servicer's obligations hereunder; or (ix) to the extent the Depositor
consents in writing to such disclosure. For purposes of this paragraph, the
terms "Master Servicer" and "Special Servicer" shall mean the divisions or
departments of such corporate entities involved in providing services hereunder
and their respective officers, directors and employees. Notwithstanding anything
in this Section 3.24 to the contrary, the Master Servicer, and any Sub-Servicer
with the prior written permission of the Master Servicer, may disseminate
pool-wide and general statistical information relating to the Loans and the Loan
portfolio being serviced (as to any Sub-Servicer, limited to its own
sub-serviced portfolio), so long as no Mortgagors are identified.
Section 3.25 No Solicitation of Prepayments.
Neither the Master Servicer nor the Special Servicer shall solicit
or permit any Affiliate to solicit, either directly or indirectly, prepayments
from any Mortgagors under the Loans; provided, however, the foregoing
restriction shall not be interpreted to prohibit such solicitation by a division
or department of, or an Affiliate of, the Master Servicer or the Special
Servicer, or otherwise by a division or department of, or an Affiliate of, the
Master Servicer or the Special Servicer if such solicitation occurs incidentally
in the normal course of business and such solicitation is not conducted, in
whole or in part, (i) by an individual engaged at any time in activities
relating to the servicing of Loans or (ii) based upon or otherwise with the
benefit of information or documentation relating to the Certificates obtained by
or through the business unit within the Master Servicer or Special Servicer
responsible for servicing the Loans, including without limitation any listing of
the Loans or related Mortgagors or Mortgaged Properties. Each Sub-Servicing
Agreement shall contain a provision identical to the foregoing with respect to
the related Sub-Servicer.
Section 3.26 Certain Matters with Respect to Serviced Loans
Permitting Defeasance, Franchise Mortgage Loans and Certain Mortgage Loans
Permitting Additional Debt.
(a) With respect to each Serviced Loan as to which the Master
Servicer shall have the discretion pursuant to the terms thereof to require the
related Mortgagor to post defeasance collateral consisting of U.S. government
securities, within the meaning of Treasury Regulations Section
1.860G-2(a)(8)(i), in an amount sufficient to make all scheduled payments under
the Mortgage Note when due in lieu of making a permitted prepayment, the Master
Servicer shall so require defeasance; provided that the Master Servicer has
received an Opinion of Counsel that such defeasance complies with Treasury
Regulations Section 1.860G-2(a)(8). The Master Servicer may accept as defeasance
collateral any "government security," within the meaning of Treasury Regulations
Section 1.860G-2(a)(8)(i), notwithstanding any more restrictive requirements in
the Mortgage.
(b) The Master Servicer shall require, as a condition to the
exercise by the Mortgagor of any defeasance rights, that the Mortgagor pay any
costs and expenses associated with such exercise.
(c) To the extent that the terms of a Mortgage permit defeasance,
the Master Servicer shall require the related Mortgagor to deliver a
certification from the Mortgagor's independent certified public accountants as
to the sufficiency of the related U.S. government securities, and provide a copy
of such certification to each Rating Agency and the Directing Certificateholder.
(d) To the extent that the terms of a Mortgage permit defeasance,
the Master Servicer shall not approve the form and substance of any required
legal documents in connection with such defeasance unless (i) to the extent that
the outstanding principal balance of a Mortgage Loan is $35,000,000 or more, or
constitutes 5.0% or more of the then current principal balance of the Mortgage
Pool or such Mortgage Loan comprises at the time one of the ten largest Mortgage
Loans (by outstanding principal balance) in the Mortgage Pool, Fitch and S&P
each shall have confirmed to it in writing that such defeasance will not result
in the withdrawal, downgrade or qualification (if applicable) of the rating of
any Class of Certificates or Companion Loan Securities, (ii) it shall have
obtained an Opinion of Counsel that the defeasance complies with applicable
REMIC Provisions; and, (iii) it shall have obtained an accountant's
certification that the defeasance collateral is sufficient to make payments
under the related Mortgage Loan for the remainder of its term. In the case of
the defeasance of any Mortgage Loan that does not require a Rating Agency
confirmation pursuant to the immediately preceding clause (i), the Master
Servicer must provide to S&P after completion of the defeasance a certification
substantially in the form of Exhibit J hereto.
(e) With respect to each Serviced Loan that provides for defeasance,
to the extent permitted by the terms of such Mortgage Loan, or if so requested
by the Rating Agencies, the Master Servicer shall use its best efforts to have
the related Mortgagor (i) designate a Single-Purpose-Entity (if the borrower no
longer complies) to assume the Mortgage Loan and own the collateral and (ii)
provide an opinion from counsel that the Trustee has a perfected security
interest in the new collateral.
(f) To the extent that (i) the outstanding principal balance of a
Mortgage Loan is $35,000,000 or more or constitutes 2.0% or more of the then
current principal balance of the Mortgage Pool or such Mortgage Loan comprises
at the time one of the ten largest Mortgage Loan (by outstanding principal
balance) in the Mortgage Pool, and (ii) the terms of the related loan documents
require the consent of the lender in order for the related Mortgagor to change
the manager of the related Mortgaged Property, the Master Servicer shall not so
consent to such a change in management unless it has received (a) the prior
consent of the Special Servicer, which will be deemed given if such party has
not responded within ten Business Days (as such period may be extended herein if
the consent of the Directing Certificateholder or the related Controlling Holder
(if an A/B Whole Loan, is involved) is required hereunder) following delivery of
request for consent together with any information reasonably necessary to make a
decision and (b) a written confirmation from each Rating Agency such a change in
management, if effected, would not result in the withdrawal, downgrade or
qualification (if applicable) of the rating of any Class of Certificates or
Companion Loan Securities.
(g) Notwithstanding anything contained in this Section 3.26 the
Master Servicer will disregard any objection of the Directing Certificateholder
or any Controlling Holder (if an A/B Whole Loan, is involved), as applicable,
that would result in a Prohibited Action.
Section 3.27 Application of Default Charges.
(a) Subject to the terms of any applicable Intercreditor Agreement,
any and all Default Charges that are actually received by or on behalf of the
Trust with respect to the Mortgage Pool, shall be applied for the following
purposes and in the following order, in each case to the extent of the remaining
portion of such Default Charges:
first, to pay to the Trustee, the Master Servicer or the Special
Servicer, in that order, any Advance Interest due and owing to such party
on outstanding Advances made thereby with respect to any Mortgage Loan or
REO Loan in the Mortgage Pool;
second, to reimburse the Trust for any Advance Interest paid to the
Trustee, the Master Servicer or the Special Servicer since the Closing
Date with respect to any Mortgage Loan or REO Loan in the Mortgage Pool
during the 12-month period preceding the receipt of such Default Charges,
which Advance Interest was paid from a source other than Default Charges
received on the Mortgage Pool;
third, to pay the Special Servicer for any Servicing Advances made
for the cost of an inspection made on a Specially Serviced Loan;
fourth, to reimburse the Trust for any other Additional Trust Fund
Expenses incurred with respect to any Mortgage Loan or REO Loan in the
Mortgage Pool during the 12-month period prior to the receipt of such
Default Charges, which expense was previously paid from a source other
than Default Charges received on the Mortgage Pool;
fifth, to pay the Master Servicer for Servicing Advances made for
the cost of an inspection made on a Loan other than a Specially Serviced
Loan; and
sixth, to pay any remaining portion of such Default Charges as
Additional Master Servicing Compensation to the Master Servicer, if such
Default Charges were collected with respect to a Performing Serviced Loan,
and otherwise to pay any remaining portion of such Default Charges as
Additional Special Servicing Compensation to the Special Servicer.
(b) Default Charges applied to reimburse the Trust pursuant to
either clause second or clause fourth of Section 3.27(a) is intended to be
available for distribution on the Certificates pursuant to Section 4.01(b),
subject to application pursuant to Section 3.05(a), Section 3.05(b), Section
3.05(c) or Section 3.05(f) for any items payable out of general collections on
the Mortgage Pool. Default Charges applied to reimburse the Trust pursuant to
either clause second or clause fourth of Section 3.27(a) shall be deemed to
offset payments of Advance Interest or other Additional Trust Fund Expenses
(depending on which clause is applicable) in the chronological order in which
they were made or incurred (whereupon such Advance Interest or other Additional
Trust Fund Expenses (depending on which clause is applicable) shall thereafter
be deemed to have been paid out of Default Charges).
(c) Subject to the terms of any applicable Intercreditor Agreement,
any and all Default Charges that are actually collected with respect to any
Companion Loan related to a Serviced Whole Loan or any successor REO Loan with
respect thereto during any Collection Period (as allocable thereto pursuant to
the related loan agreement), shall be applied for the following purposes and in
the following order, in each case to the extent of the remaining portion of such
Default Charges and net of any portion of such Default Charges, if any, that are
required to be paid to any Companion Loan Holder under any Intercreditor
Agreement and/or this Agreement:
first, to pay to the Trustee, the Master Servicer or the Special
Servicer, in that order, any Advance Interest due and owing to such party on any
outstanding Servicing Advances made thereby with respect to any Loan or REO Loan
in such Serviced Whole Loan or the related REO Mortgaged Property and reimbursed
in the related Collection Period (to be applied with respect to any particular
party in such manner that the interest that accrued first and has been
outstanding the longest shall be paid first);
second, to pay to the Trustee and, in the case of a Serviced Whole
Loan, any trustee under a securitization of such Companion Loan, pro rata; the
Master Servicer and, in the case of a Serviced Whole Loan with a Pari Passu
Companion Loan, any master servicer under a securitization of such Companion
Loan, pro rata; or the Special Servicer and, in the case of a Serviced Whole
Loan with a Pari Passu Companion Loan, any special servicer under a
securitization of such Companion Loan, pro rata; in that order, any interest due
and owing to such party on any outstanding P&I Advances (or comparable debt
service advances) made thereby, with respect to any Loan or REO Loan in such
Serviced Whole Loan or the related REO Mortgaged Property and reimbursed in the
related Collection Period (to be applied with respect to any particular party in
such manner that the interest that accrued first and has been outstanding the
longest shall be paid first); and
third, to pay any remaining portion of such Default Charges as
Additional Master Servicing Compensation to the Master Servicer, to the extent
received, if they were accrued with respect to such Companion Loan during a
period that it was a Performing Serviced Loan, or as Additional Special
Servicing Compensation to the Special Servicer, to the extent received, if they
were accrued with respect to such Companion Loan during a period that it was a
Specially Serviced Loan or a REO Loan, in each case pursuant to Section 3.11.
Section 3.28 Matters Regarding the Whole Loans.
(a) No Companion Loan Holder will have any liability to the Trust or
the Certificateholders for any action taken, or for refraining from the taking
of any action, in good faith pursuant to this Agreement, or for errors in
judgment; provided, however, such Companion Loan Holder will not be protected
against any liability which would otherwise be imposed by reason of willful
misfeasance, bad faith or negligence in the performance of duties or by reason
of negligent disregard of duties.
(b) The related Companion Loan Holder shall be entitled to receive
(upon request) a copy of any report required to be delivered (upon request or
otherwise) to the Trustee with respect to the related Whole Loan or any related
REO Property by any other party hereto. The related Companion Loan Holder shall
also be entitled to receive a copy of any document, certificate, instrument,
notice or correspondence required to be delivered (upon request or otherwise) by
the Trustee or Master Servicer with respect to the related Whole Loan or any
related REO Property to any other party hereto. In addition, the related
Companion Loan Holder, or a servicer acting on its behalf, shall be entitled to
request information from the Master Servicer with respect to the related Whole
Loan to permit customary reporting with respect to a securitization relating to
the related Companion Loan; provided, however, the information provider shall
not be required to deliver information relating to Loans other than the related
Whole Loan or information of a scope or nature that is materially different from
that which is required to be delivered by the Master Servicer under this
Agreement. The Master Servicer shall be permitted to require payment of a sum
sufficient to cover the reasonable costs and expenses of providing such
information.
(c) If, pursuant to Section 2.03, Section 3.18 or Section 9.01, the
Mortgage Loan included in a Whole Loan is purchased or repurchased from the
Trust Fund, the purchaser thereof shall be bound by the terms of the related
Intercreditor Agreement and shall assume the rights and obligations of the
holder of the related Note under the related Intercreditor Agreement. All
portions of the related Mortgage File and other documents pertaining to such
Mortgage Loan shall be endorsed or assigned to the extent necessary or
appropriate to the purchaser of such Mortgage Loan in its capacity as the holder
of the related Note (as a result of such purchase or repurchase), under the
related Intercreditor Agreement in the manner contemplated under such agreement,
which such purchaser shall be deemed to acknowledge and thereafter such Mortgage
File shall be held by such purchaser or a custodian appointed thereby for the
benefit of each Note holder (as their interests appear under the related
Intercreditor Agreement). If the related Servicing File is not already in the
possession of such purchaser or custodian (as the case may be), it shall be
delivered to the master servicer or special servicer, as the case may be, under
the separate servicing agreement for the related Whole Loan.
Section 3.29 Matters Regarding the Non-Serviced Whole Loans.
(a) In the event that any Non-Serviced Loan Trustee, Non-Serviced
Loan Trustee Master Servicer or Non-Serviced Loan Special Servicer shall be
replaced in accordance with the terms of the related Non-Serviced Loan Servicing
Agreement, the Master Servicer and the Special Servicer shall acknowledge any
such successor as the successor to such Non-Serviced Loan Trustee, such
Non-Serviced Loan Master Servicer or such Non-Serviced Loan 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 Certificate Administrator any servicing reports concerning any Non-Serviced
Mortgage Loan promptly following receipt from the related Non-Serviced Loan
Master Servicer, the related Non-Serviced Loan Special Servicer or the related
Non-Serviced Loan Trustee,.
(c) If any of the Trustee, the Certificate Administrator or the
Master Servicer receive notice from a Rating Agency that the Master Servicer is
no longer an "approved" master servicer by any of the Rating Agencies rating the
Certificates, then the Trustee, the Certificate Administrator or the Master
Servicer, as applicable, shall promptly notify the related Non-Serviced Loan
Master Servicer and the Non-Serviced Loan Trustee of the same.
Section 3.30 Certain Powers of the Controlling Holders and Certain
Intercreditor Matters.
(a) With respect to each A/B Whole Loan, the related Controlling
Holder shall not owe any fiduciary duty to the Trustee, the Certificate
Administrator, the Master Servicer, the Special Servicer or any
Certificateholder with respect to the related A/B Whole Loan. The related
Controlling Holder will not have any liability to the Certificateholders for any
action taken, or for refraining from the taking of any action or the giving or
withholding of any consent, pursuant to this Agreement, or for errors in
judgment. By its acceptance of a Certificate, each Certificateholder confirms
its understanding that the related Controlling Holder may take or refrain from
taking actions that favor the interests of one or more Classes of the
Certificates over other Classes of the Certificates, and that the related
Controlling Holder may have special relationships and interests that conflict
with those of Holders of some Classes of the Certificates, that the related
Controlling Holder does not have any duties to the Holders of any Class of
Certificates, and that the related Controlling Holder shall have no liability
whatsoever for having so acted, and no Certificateholder may take any action
whatsoever against the related Controlling Holder or any director, officer,
employee, agent or principal thereof for having so acted.
(b) Notwithstanding anything in this Agreement to the contrary, with
respect to each A/B Whole Loan, the related Controlling Holder, in lieu of the
Directing Certificateholder, shall be entitled to exercise all rights of the
Directing Certificateholder under this Agreement with respect to such A/B Whole
Loan 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 Matters Relating to Certain Mortgage Loans.
With respect to the Mortgage Loan identified as Loan No. 3407789 in
the Mortgage Loan Schedule and referred to in this section as "4000 Wisconsin
Avenue", the Master Servicer or the Special Servicer, as applicable, may consent
to prepayment in full (but not in part) during the "Lockout Period" (as defined
in the related loan agreement); provided that such consent is conditioned on the
related Borrower's tender of all amounts due on such Mortgage Loan on the date
selected by the parties, and the delivery on that date of an opinion of counsel
opining that the acceptance of such prepayment will not cause an Adverse REMIC
Event.
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;
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, Class X-0, Xxxxx X-0, Class A-SB, 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 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 Certificate Administrator
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 in the order of
priority set forth in clauses (i) through (lviii) 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,
Class A-2, Class A-3, Class A-SB 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,
Class X-0, Xxxxx X-0, Class A-SB, Class A-4, Class A-1A 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,
Class X-0, Xxxxx X-0, Class A-SB, Class A-4 and Class A-1A Certificates in
reduction of the Class Principal Balances thereof concurrently (A)(1)
first, to the Holders of the Class A-SB 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-SB Certificates has been reduced to the Class A-SB 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-SB Certificates (up to the
Class A-SB 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 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-SB Certificates (up
to the Class A-SB 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 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-SB Certificates (up to the Class A-SB Planned
Principal Amount) and the Class A-1 and Class A-2 Certificates 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-SB 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-SB
Certificates (up to the Class A-SB Planned Principal Amount) and the Class
A-1, Class A-2 and Class A-3 Certificates have been made on such
Distribution Date, until the outstanding Class Principal Balance of the
Class A-SB Certificates has been reduced to zero; (6) sixth, to the
Holders of the Class A-4 Certificates, in an amount up to the Loan Group 1
Principal Distribution Amount and, after the outstanding Class Principal
Balance of the Class A-1A Certificates has been reduced to zero, the Loan
Group 2 Principal Distribution Amount remaining after payments to Holders
of the Class A-1A, Class A-1, Class A-2, Class A-3 and Class A-SB
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, Class A-2, Class A-3, Class A-SB
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-1, Class A-2, Class A-3, Class A-SB 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, Class X-0, Xxxxx
X-0, Class A-SB, Class A-4 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, Class X-0,
Xxxxx X-0, Class A-SB, Class A-4 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 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, Class X-0,
Xxxxx X-0, Class A-SB, Class A-4, Class A-1A and Class A-M Certificates
have been reduced to zero, to distributions of principal to the Holders of
the Class A-J Certificates in an amount (not to exceed the Class Principal
Balance of the Class A-J Certificates outstanding immediately prior to
such Distribution Date) equal to the entire remaining Principal
Distribution Amount for such Distribution Date;
(ix) to distributions to the Holders of the Class A-J 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-J Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(x) to distributions of interest to the Holders of the Class B
Certificates in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xi) if the Class Principal Balances of the Class A-1, Class X-0,
Xxxxx X-0, Class A-SB, Class A-4, Class A-1A, Class A-M and Class A-J
Certificates have been reduced to zero, to distributions of principal to
the Holders of the Class B Certificates, in an amount (not to exceed the
Class Principal Balance of the Class B Certificates outstanding
immediately prior to such Distribution Date) equal to the entire remaining
Principal Distribution Amount for such Distribution Date;
(xii) to distributions to the Holders of the Class B Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, that were previously allocated to
the Class Principal Balance of the Class B Certificates and that remain
unreimbursed immediately prior to such Distribution Date;
(xiii) to distributions of interest to the Holders of the Class C
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xiv) if the Class Principal Balances of the Class A-1, Class X-0,
Xxxxx X-0, Class A-SB, Class A-4, Class A-1A, Class A-M, Class A-J 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, Class X-0,
Xxxxx X-0, Class A-SB, Class A-4, Class A-1A, Class A-M, Class A-J, Class
B 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, Class X-0,
Xxxxx X-0, Class A-SB, Class A-4, Class A-1A, Class A-M, Class A-J, Class
B, Class C 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, Class X-0,
Xxxxx X-0, Class A-SB, Class A-4, Class A-1A, Class A-M, Class A-J, Class
B, Class C, Class D 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, Class X-0,
Xxxxx X-0, Class A-SB, Class A-4, Class A-1A, Class A-M, Class A-J, Class
B, Class C, Class D, Class E 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, Class X-0,
Xxxxx X-0, Class A-SB, Class A-4, Class A-1A, Class A-M, Class A-J, Class
B, Class C, Class D, Class E, Class F 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, Class X-0,
Xxxxx X-0, Class A-SB, Class A-4, Class A-1A, Class A-M, Class A-J, Class
B, Class C, Class D, Class E, Class F, Class G and Class H Certificates
have been reduced to zero, 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, Class X-0,
Xxxxx X-0, Class A-SB, 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 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, Class
X-0, Xxxxx X-0, Class A-SB, 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 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, Class X-0,
Xxxxx X-0, Class A-SB, 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
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, Class X-0,
Xxxxx X-0, Class A-SB, 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 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, Class X-0,
Xxxxx X-0, Class A-SB, 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 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, Class X-0,
Xxxxx X-0, Class A-SB, 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 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, Class X-0,
Xxxxx X-0, Class A-SB, 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 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, Class X-0,
Xxxxx X-0, Class A-SB, 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 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-SB, Class A-4 and Class A-1A Certificates, subject to
available funds, up to an amount equal to, and pro rata as among such Classes in
accordance with, the respective then outstanding Class Principal Balances of
such Classes, and without regard to the Principal Distribution Amount for such
date; and provided, further, on the Final Distribution Date, the payments of
principal to be made pursuant to any of clauses (v), (viii), (xi), (xiv),
(xvii), (xx), (xxiii), (xxvi), (xxix), (xxxii), (xxxv), (xxxviii), (xli),
(xliv), (xlvii), (l), (liii) and (lvi) of this Section 4.01(b) with respect to
any Class of REMIC II Regular Certificates, 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, 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-SB, Class A-4 and Class A-1A
Certificates shall be to the Principal Distribution Amount for such Distribution
Date, net of any distributions of principal made in respect thereof to the
Holders of each other Class of Class A Certificates, if any, that pursuant to
clause (ii) of this Section 4.01(b) has an earlier right to payment with respect
thereto. References to "remaining Principal Distribution Amount" in any of
clauses (v), (viii), (xi), (xiv), (xvii), (xx), (xxiii), (xxvi), (xxix),
(xxxii), (xxxv), (xxxviii), (xli), (xliv), (xlvii), (l), (liii) and (lvi) of
this Section 4.01(b), in connection with the payments of principal to be made to
the Holders of any Class of REMIC II Regular Certificates, 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 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 Certificate Administrator to the Class A-1,
Class X-0, Xxxxx X-0, Class A-SB, 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 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, Class X-0, Xxxxx X-0, Class A-SB,
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 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, Class X-0, Xxxxx X-0,
Class A-SB, 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 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
Certificate Administrator to the Holders of the Class A-1A Certificates in
an amount equal to the product of: (a) a fraction, not greater than one,
whose numerator is the amount of principal distributed to such Class on
such Distribution Date and whose denominator is the total amount of
principal payments received in respect of such Distribution Date for all
Mortgage Loans included in Loan Group 2 on such Distribution Date, (b) the
Base Interest Fraction for the related principal prepayment and such Class
of Certificates and (c) the amount of Prepayment Premiums collected on
such principal prepayment during the related Prepayment Period. However,
the amount of Prepayment Premiums so distributed to the Class A-1A
Certificates in accordance with the preceding sentence will not exceed the
amount of Prepayment Premiums collected on the Mortgage Loans in Loan
Group 2 during such Prepayment Period. Any Prepayment Premiums collected
during the related Prepayment Period remaining after such distributions
will be distributed to the Holders of the Class XW Certificates.
(iii) Other Aspects. No Prepayment Premiums will be distributed to
the Holders of the Class L, Class M, Class N, Class O, Class P, Class Q,
Class S, Class V, Class R-I or Class R-II Certificates. Instead, after the
Certificate Principal Balances of the Class A-1, Class X-0, Xxxxx X-0,
Class A-SB, 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 and Class K
Certificates have been reduced to zero, all Prepayment Premiums with
respect to the Mortgage Loans will be distributed to the Holders of the
Class XW Certificates. No Prepayment Premiums in respect of Mortgage Loans
included in Loan Group 1 and Loan Group 2 will be distributed to Holders
of any other Class of Certificates. Prepayment Premiums will be
distributed on any Distribution Date only to the extent they are received
in respect of the Mortgage Loans in the related Prepayment Period.
(iv) All distributions of Prepayment Premiums made in respect of the
respective Classes of REMIC II Regular Certificates 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 Certificate Administrator 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 Certificate Administrator 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 Administrator, 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
Certificate Administrator 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 Certificate Administrator 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 Certificate Administrator 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
Certificate Administrator 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 Certificate Administrator, 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 Certificate
Administrator 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
Certificate Administrator 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
Certificate Administrator shall comply with all federal withholding requirements
respecting payments to Certificateholders of interest or original issue discount
that the Certificate Administrator 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 Certificate Administrator does withhold any amount from interest or original
issue discount payments or advances thereof to any Certificateholder pursuant to
federal withholding requirements, the Certificate Administrator 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 Certificate Administrator from the Excess Interest Distribution
Account and distributed by the Certificate Administrator 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(g), to the extent not otherwise included in
the Available Distribution Amount for the final Distribution Date.
Section 4.02 Statements to Certificateholders; Certain Reports by
the Master Servicer and the Special Servicer.
(a) On each Distribution Date, the Certificate Administrator 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 Certificate Administrator as
to its Ownership Interest in a Class of Book-Entry Certificates, each
Certificate Owner) of the Certificates, 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 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
allocable to Distributable Certificate Interest and the amount of the
distribution, if any, on such Distribution Date to the Holders of each
Class of REMIC II Regular Certificates allocable to Prepayment Premiums;
(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 for
such Distribution Date;
(xi) the aggregate amount of Distributable Certificate Interest
payable in respect of each Class of REMIC II Regular Certificates 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 after giving effect to the
distributions made on such Distribution Date;
(xiii) the Pass-Through Rate for each Class of REMIC II Regular
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;
(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 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 REMIC II 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; and
(xxiv) the CMSA Reconciliation of Funds Report.
Any item of information disclosed to the Certificate Administrator
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 Certificate Administrator 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 Certificate
Administrator 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 Certificate Administrator contemplated by this Section 4.02
shall, in the absence of manifest error, be presumptively deemed to be correct
for all purposes hereunder.
The Certificate Administrator 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 Certificate Administrator shall furnish to each Person who at any time
during the calendar year was a Holder of a REMIC II Regular Certificate a
statement containing the information as to the applicable Class set forth in
clauses (i), (ii) and (iii) of this Section 4.02(a), aggregated for such
calendar year or applicable portion thereof during which such Person was a
Certificateholder, together with such other information as the Certificate
Administrator determines to be necessary to enable Certificateholders to prepare
their tax returns for such calendar year. Such obligation of the Certificate
Administrator shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the Certificate
Administrator 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 Certificate Administrator 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 Certificate
Administrator's Website. In addition, the Certificate Administrator will make
available to the general public each month the Servicer Reports, the CMSA Loan
Setup File and the Certificate Administrator's Reports on the Certificate
Administrator's Website. In addition, the Certificate Administrator 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 Certificate Administrator's Website. The Certificate
Administrator 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 Certificate
Administrator 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 Certificate
Administrator shall provide timely and adequate notification to all above
parties regarding any such changes. For assistance with the above-referenced
services, interested parties may call (000) 000-0000. The Certificate
Administrator 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
Certificate Administrator 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
Certificate Administrator.
In connection with providing access to the Certificate
Administrator's Website, the Certificate Administrator may require registration
and the acceptance of a disclaimer. The Certificate Administrator 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
Certificate Administrator, in a computer-readable medium downloadable by the
Certificate Administrator, 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 Certificate Administrator),
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 Certificate Administrator
for purposes of making the calculations and preparing the reports for which the
Certificate Administrator 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 Certificate
Administrator from time to time. Such information may be delivered by the Master
Servicer to the Certificate Administrator by telecopy or in such electronic or
other form as may be reasonably acceptable to the Certificate Administrator 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 Certificate Administrator.
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 Certificate Administrator.
(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 Certificate Administrator,
which shall be delivered directly to the Certificate Administrator in a mutually
agreeable electronic format), the Master Servicer or the Special Servicer, as
the case may be, may satisfy such obligation by (x) physically delivering a
paper copy of such statement, report or information, (y) delivering such
statement, report or information in a commonly used electronic format or (z)
making such statement, report or information available on the Master Servicer's
internet website, unless this Agreement expressly specifies a particular method
of delivery.
Section 4.03 P&I Advances.
(a) On each Master Servicer Remittance Date, the Master Servicer
shall in the case of all Mortgage Loans other than a Mortgage Loan included in a
Serviced Whole Loan, either (i) deposit into the Distribution Account from its
own funds an amount equal to the aggregate amount of P&I Advances, if any, to be
made in respect of the related Distribution Date, (ii) apply amounts held in the
Certificate Account for future distribution to Certificateholders in subsequent
months in discharge of any such obligation to make P&I Advances, or (iii) make
P&I Advances in the form of any combination of (i) and (ii) aggregating the
total amount of P&I Advances to be made; provided that if Late Collections of
any of the delinquent principal and/or interest in respect of which it is to
make P&I Advances on any Master Servicer Remittance Date are then on deposit in
the Certificate Account, the Master Servicer shall use such Late Collections
(net of any Master Servicing Fees, Liquidation Fees and Workout Fees payable
therefrom) to make such P&I Advances. With respect to each Mortgage Loan
included in a Serviced Whole Loan, on each Master Servicer Remittance Date, the
Master Servicer shall either (i) deposit into the related Serviced Whole Loan
Custodial Account from its own funds an amount equal to the aggregate amount of
P&I Advances, if any, to be made in respect of the related Distribution Date on
the Mortgage Loan included in such Serviced Whole Loan, (ii) subject to the
terms of the related Intercreditor Agreement, apply amounts held in the related
Serviced Whole Loan Custodial Account for future distribution in subsequent
months in discharge of any such obligation to make P&I Advances, or (iii) make
P&I Advances in the form of any combination of (i) and (ii) aggregating the
total amount of P&I Advances to be made; provided that if Late Collections of
any of the delinquent principal and/or interest in respect of which it is to
make P&I Advances on any Master Servicer Remittance Date are then on deposit in
the related Serviced Whole Loan Custodial Account, the Master Servicer shall use
such Late Collections (net of any Master Servicing Fees, Liquidation Fees and
Workout Fees payable therefrom and any portion thereof required to be paid to
the related Companion Loan Holder in the case of a Serviced Whole Loan under the
related Intercreditor Agreement) to make such P&I Advances. Any amounts held in
the Certificate Account or if a Serviced Whole Loan is involved, the related
Serviced Whole Loan Custodial Account, for future distribution and so used to
make P&I Advances (other than the Late Collections of the delinquent principal
and/or interest contemplated by the proviso to the preceding sentence) shall be
appropriately reflected in the Master Servicer's records and replaced by the
Master Servicer by deposit into the Certificate Account or, if a Serviced Whole
Loan is involved, the related Serviced Whole Loan Custodial Account, on or
before the next succeeding Determination Date (to the extent not previously
replaced through the deposit of Late Collections of the delinquent principal
and/or interest in respect of which such P&I Advances were made). If, as of 3:00
p.m., New York City time, on any Master Servicer Remittance Date, the Master
Servicer shall not have made any P&I Advance required to be made on such date
pursuant to this Section 4.03(a) (and shall not have delivered to the Trustee
the requisite Officer's Certificate and documentation related to a determination
of nonrecoverability of a P&I Advance), then the Trustee shall provide notice of
such failure to a Servicing Officer of the Master Servicer by facsimile
transmission sent to telecopy no. (000) 000-0000 (or such alternative number
provided by the Master Servicer to the Trustee in writing) and by telephone at
telephone no. (000) 000-0000 (or such alternative number provided by the Master
Servicer to the Trustee in writing) as soon as possible, but in any event before
4:00 p.m., New York City time, on such Master Servicer Remittance Date. If,
after such notice, the Certificate Administrator, on behalf of the Trustee, does
not receive the full amount of such P&I Advances by the close of business (New
York City time) on such Master Servicer Remittance Date, then (i) unless the
Trustee determines that such Advance would be a Nonrecoverable P&I Advance if
made or the Trustee shall make, by 11:00 a.m. on the Distribution Date or in any
event by such time as shall be required to make the required distribution on
such Distribution Date, the portion of such P&I Advances that was required to
be, but was not, made by the Master Servicer on such Master Servicer Remittance
Date and (ii) such failure shall constitute an Event of Default on the part of
the Master Servicer. The making of an Advance by a fiscal agent appointed by the
Trustee pursuant to Section 8.06 shall not be an Event of Default with respect
to the Trustee. For the avoidance of doubt, neither the Master Servicer nor the
Trustee shall be required to make a P&I Advance on any Companion Loan.
(b) The aggregate amount of P&I Advances to be made in respect of
the Loans (including, without limitation, Balloon Loans that are included in the
Trust Fund delinquent as to their respective Balloon Payments) and any REO Loans
for any Distribution Date shall equal, subject to subsection (c) of this Section
4.03, the aggregate of all Monthly Payments (other than Balloon Payments) and
any Assumed Monthly Payments, in each case net of related Master Servicing Fees
and, if applicable, any Non-Serviced Mortgage Loan Primary Servicing Fee payable
hereunder, that were due or deemed due, as the case may be, in respect thereof
on their respective Due Dates during the related Collection Period and that were
not paid by or on behalf of the related Mortgagors or otherwise collected as of
the close of business on the Business Day before the Master Servicer Remittance
Date; provided that if an Appraisal Reduction Amount exists with respect to any
Required Appraisal Serviced Loan, then, in the event of subsequent delinquencies
thereon, the interest portion of the P&I Advance in respect of such Required
Appraisal Serviced Loan or, in the case of a Mortgage Loan included in a
Serviced Whole Loan which is a Required Appraisal Serviced Loan, the related
Mortgage Loan, as the case may be, for the related Distribution Date shall be
reduced (it being herein acknowledged that there shall be no reduction in the
principal portion of such P&I Advance) to equal the product of (i) the amount of
the interest portion of such P&I Advance for such Mortgage Loan for such
Distribution Date without regard to this proviso, multiplied by (ii) a fraction,
expressed as a percentage, the numerator of which is equal to the Stated
Principal Balance of such Mortgage Loan immediately prior to such Distribution
Date, net of the related Appraisal Reduction Amount, if any, allocable to such
Mortgage Loan and the denominator of which is equal to the Stated Principal
Balance of such Required Appraisal Serviced Loan immediately prior to such
Distribution Date; provided, further, the Master Servicer shall not advance
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 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 Serviced Whole Loan,
Nonrecoverable P&I Advances shall be reimbursable pursuant to Section 3.05(a)
out of general collections on the Mortgage Pool on deposit in the Certificate
Account. With respect to a Mortgage Loan included in a Serviced Whole Loan,
Nonrecoverable P&I Advances shall be reimbursable pursuant to Section 3.05(f).
The determination by the Master Servicer or the Trustee that it has made a
Nonrecoverable P&I Advance 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
Certificate Administrator (or, if applicable, retained thereby), the Depositor,
the Rating Agencies, the Directing Certificateholder and the related Companion
Loan Holder and any Controlling Holder (in the case of an A/B Whole Loan), as
applicable, setting forth the basis for such determination, together with (such
determination is prior to the liquidation of the related Loan or REO Property) a
copy of an Appraisal of the related Mortgaged Property or REO Property, as the
case may be, which shall have been performed within the 12 months preceding such
determination, and further accompanied by any other information that the Master
Servicer or the Special Servicer may have obtained that supports such
determination. The Trustee shall deliver such Officer's Certificate as soon as
practicable after its determination that such P&I Advance would be
nonrecoverable. If such an Appraisal shall not have been required and performed
pursuant to the terms of this Agreement, the Master Servicer may, subject to its
reasonable and good faith determination that such Appraisal will demonstrate the
nonrecoverability of the related Advance, obtain an Appraisal for such purpose
at the expense of the Trust out of general collections. The Trustee shall be
entitled to rely on any determination of nonrecoverability that may have been
made by the Master Servicer with respect to a particular P&I Advance, and the
Master Servicer and the Trustee shall be entitled to rely on any determination
of nonrecoverability that may have been made by the Special Servicer with
respect to a particular P&I Advance in the case of Specially Serviced Loans.
(d) As and to the extent permitted by Section 3.05(a) or Section
3.05(f) with respect to a Serviced Whole Loan or any portion thereof, the Master
Servicer and the Trustee shall be entitled to receive interest at the
Reimbursement Rate in effect from time to time, accrued on the amount of each
P&I Advance made thereby (out of its own funds), to the extent that such P&I
Advance relates to a Past Grace Period Serviced Loan when made, or remains
outstanding when such Serviced Loan becomes a Past Grace Period Serviced Loan,
in which case such interest shall begin to accrue when such Serviced Loan
becomes a Past Grace Period Serviced Loan, for so long as such P&I Advance is
outstanding (or, in the case of Advance Interest payable to the Master Servicer,
if earlier, until the Late Collection of the delinquent principal and/or
interest in respect of which such P&I Advance was made has been received by the
Master Servicer). Such interest will be paid: first, out of any Default Charges
as set forth in Section 3.27; and second, at any time coinciding with or
following the reimbursement of such P&I Advance, out of general collections on
the Mortgage Loans and any REO Properties on deposit in the Certificate Account
or if a Serviced Whole Loan is involved, out of general collections on deposit
in the related Serviced Whole Loan Custodial Account. As and to the extent
provided by Section 3.05(a) or Section 3.05(f) with respect to a Serviced Whole
Loan, the Master Servicer shall reimburse itself or the Trustee, as appropriate,
for any P&I Advance made thereby as soon as practicable after funds available
for such purpose are deposited into the Certificate Account or, if a Serviced
Whole Loan is involved, are deposited into the related Serviced Whole Loan
Custodial Account, and in no event shall interest accrue in accordance with this
Section 4.03(d) on any P&I Advance as to which the corresponding Late Collection
had been received as of the related date on which such P&I Advance was made.
Interest accrued on any P&I Advance made under this Section 4.03 with respect
to: (A) a Serviced Whole Loan which is a Pari Passu Whole Loan shall be payable
(unless required to be paid to the related Companion Loan Holder under any
Intercreditor Agreement): (i) first, out of the pro rata portion of Default
Charges collected on or in respect of the Mortgage Loan related to such Serviced
Whole Loan during the same Collection Period in which such P&I Advance is
reimbursed, (ii) second, to the extent that the Default Charges described in the
immediately preceding clause (i) are insufficient, but only if such P&I Advance
is being reimbursed at the same time or if such P&I Advance has been previously
reimbursed, out of such Mortgage Loan's pro rata portion of any other
collections that were made on or in respect of allocable to such Mortgage Loan
related to such Serviced Whole Loan, and (iii) third, solely with respect to
such Serviced Whole Loan, to the extent that Default Charges or other
collections described in the immediately preceding clauses (i) and (ii) are
insufficient, but only if such P&I Advance is being reimbursed at the same time
or if such Advances has been previously reimbursed, out of general collections
on or in respect of the Mortgage Loans, or (B) a Serviced Whole Loan which is an
A/B Whole Loan shall be payable (unless required to be paid to the related
Companion Loan Holder under any Intercreditor Agreement): (i) first, out of
Default Charges collected on or in respect of the related Companion Loan, during
the 12-month period in which such Advance is reimbursed, (ii) second, out of
Default Charges collected on or in respect of the related Mortgage Loan, as
applicable, during the same Collection Period in which such P&I Advance is
reimbursed, (iii) third, to the extent that the Default Charges described in the
immediately preceding clause (i) and (ii) are insufficient, but only if such P&I
Advance is being reimbursed at the same time or if such P&I Advance has been
previously reimbursed, out of any other collections that were made on or in
respect of such A/B Whole Loan, and (iv) solely with respect to such A/B Whole
Loan, to the extent that Default Charges or other collections described in the
immediately preceding clauses (i), (ii) and (iii) are insufficient, but only if
such P&I Advance is being reimbursed at the same time or if such Advances has
been previously reimbursed, out of general collections on or in respect of the
Mortgage Loans.
(e) With regard to such P&I Advances, the Master Servicer, the
Special Servicer or the Trustee shall account for that part of the P&I Advances
that is attributable to Past Grace Period Serviced Loans, and that part of the
P&I Advances that is attributable to Within Grace Period Loans.
(f) With respect to each Whole Loan with a Pari Passu Companion Loan
that will not be included in the Trust Fund, if (i) the Master Servicer or any
master servicer for a securitization relating to the Pari Passu Companion Loan
determines that a proposed P&I Advance, if made, would be a Nonrecoverable P&I
Advance or an outstanding P&I Advance is or would be nonrecoverable and (ii)
notice of such determination has been delivered by the Master Servicer or the
Master Servicer receives written notice of such determination by any other
master servicer for a securitization relating to the Pari Passu Companion Loan,
none of the Master Servicer, the Trustee, the other master servicers or any
other party to the related pooling and servicing agreement may make any
additional P&I Advances with respect to the related Mortgage Loan or the Pari
Passu Companion Loan until the Master Servicer has consulted with the other
applicable master servicers and they agree that circumstances with respect to
the related Whole Loan have changed such that a proposed future P&I Advance
would not be a Nonrecoverable Advance. Notwithstanding the foregoing, the Master
Servicer will not be required to abide by any determination of
non-recoverability by another master servicer that is not an "approved" master
servicer by any of the Rating Agencies rating the Certificates.
Section 4.04 Allocation of Realized Losses and Additional Trust Fund
Expenses.
(a) On each Distribution Date, the Certificate Administrator shall
determine the amount, if any, by which (i) the then aggregate Certificate
Principal Balance of the Sequential Pay Certificates 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,
Class Q, Class P, Class O, Class N, Class M, Class L, Class K, Class J, Class H,
Class G, Class F, Class E, Class D, Class C, Class B, Class A-J 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). 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, Class X-0, Xxxxx X-0, Class A-SB, Class A-4
and Class A-1A Certificates shall be reduced, pro rata, in accordance with the
relative sizes of the then outstanding Class Principal Balances of such Classes
of Certificates, until such excess or each such Class Principal Balance is
reduced to zero (whichever occurs first). Such reductions in the Class Principal
Balances of the respective Classes of the Sequential Pay Certificates shall be
deemed to be allocations of Realized Losses and Additional Trust Fund Expenses,
to the extent not covered by reductions in distributions of interest pursuant to
the allocations set forth in Section 4.01(b).
(i) With respect to any Distribution Date, any Realized Losses or
Additional Trust Fund Expenses allocated pursuant to Section 4.04(a) with
respect to such Distribution Date shall reduce the REMIC I Principal
Balances of the REMIC I Regular Interests as a write-off and shall be
allocated among the REMIC I Regular Interests in the same priority as the
Class of Corresponding Certificates.
Section 4.05 Interest Reserve Account.
The Master Servicer shall establish and maintain the Interest
Reserve Account in the Trustee's name for the benefit of the Certificateholders.
The Interest Reserve Account shall be established and maintained, at all times,
as an Eligible Account, which the Master Servicer may (but shall not be
obligated to) invest only in Permitted Investments in accordance with Section
3.06. On each Master Servicer Remittance Date occurring in February and each
Master Servicer Remittance Date in January of any year that is not a leap year
(unless, in either case, the related Distribution Date is the final Distribution
Date), the Master Servicer shall withdraw from the Certificate Account, in
respect of each Mortgage Loan that accrues interest on an Actual/360 Basis, and
deposit into the Interest Reserve Account, an amount equal to one day's interest
at the related Net Mortgage Rate on the Stated Principal Balance of each such
Mortgage Loan or as of the Distribution Date in the month preceding the month in
which such Master Servicer Remittance Date occurs, to the extent a Monthly
Payment or P&I Advance is made in respect thereof (all amounts so deposited in
any consecutive January (if applicable) and February, "Withheld Amounts"). On
the Master Servicer Remittance Date in March (or February, if the related
Distribution Date is the final Distribution Date) of each calendar year, the
Master Servicer shall remit to the Certificate Administrator 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 Certificate Administrator 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 Certificate
Administrator 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 Certificate
Administrator 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
Certificate Administrator 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 Exhibit A-1 through and including Exhibit A-28; 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 REMIC II
Regular Certificates shall initially be held and transferred through the
book-entry facilities of the Depository. The Class A-1, Class X-0, Xxxxx X-0,
Class A-SB, Class A-4, Class A-1A, Class A-M and Class A-J Certificates will be
issuable in denominations corresponding to initial Certificate Principal
Balances as of the Closing Date of not less than $10,000 and any whole dollar
denomination in excess thereof; the Class XW Certificates will be issuable in
denominations corresponding to initial Notional Balances as of the Closing Date
of not less than $1,000,000 and any whole dollar denomination in excess thereof;
and the Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class O, Class P, Class Q and Class S will
be issuable in denominations corresponding to initial Certificate Principal
Balances as of the Closing Date of not less than $100,000 and any whole dollar
denomination in excess thereof; provided, however, a single Certificate of any
Class thereof may be issued in a different denomination. The Class V, Class R-I
and Class R-II Certificates will be issuable in one or more registered,
definitive physical certificates in minimum denominations representing not less
than 10% of the Percentage Interest and integral multiples of a 1% Percentage
Interest in excess thereof and together aggregating the entire 100% Percentage
Interest in each such 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 Certificate Administrator in its capacity as
Certificate Administrator hereunder by an authorized signatory. Certificates
bearing the manual or facsimile signatures of individuals who were at any time
the authorized officers of the Certificate Administrator 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 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 60603) may prescribe, the Certificate Registrar shall provide
for the registration of Certificates and of transfers and exchanges of
Certificates as herein provided. The Certificate Administrator 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 Certificate
Administrator 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
Certificate Administrator shall not be relieved of any of its duties or
responsibilities hereunder as Certificate Registrar by reason of such
appointment. If the Certificate Administrator resigns or is removed in
accordance with the terms hereof, the successor certificate administrator 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 Certificate Administrator 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
Certificate Administrator, 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 Certificate
Administrator 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 Certificate Administrator. If
the Certificate Administrator 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 Certificate Administrator 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 Certificate Administrator that neither
the Certificate Registrar nor the Certificate Administrator 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, the Trustee or the
Certificate Administrator 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 Certificate Administrator 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 Certificate Administrator, 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 Certificate Administrator, 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 the REMIC Residual Certificate) an insurance company using the
assets of its general account under circumstances whereby the purchase and
holding of such Certificates by such insurance company would be exempt from the
prohibited transaction provisions of ERISA and the Code under Prohibited
Transaction Class Exemption 95-60 or (ii) except for the 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
Administrator, the Certificate Registrar, the Master Servicer, the Special
Servicer, the Underwriters, the Placement Agent or the Depositor to any
obligation or liability (including obligations or liabilities under ERISA,
Section 4975 of the Code or any such Similar Law) in addition to those set forth
in this Agreement. The Certificate Registrar shall not register the sale,
transfer, pledge or other disposition of any such Certificate unless the
Certificate Registrar has received either the representation letter described in
clause (i) of this Section 5.02(c) or, with respect to the ERISA Restricted
Certificates, the Opinions of Counsel or other certification described in clause
(ii) of this Section 5.02(c). The costs of any of the foregoing representation
letters, certifications or Opinions of Counsel shall not be borne by any of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Certificate Administrator, the Underwriters, the Placement Agent, the
Certificate Registrar or the Trust Fund. With respect to transfers of Book-Entry
Certificates only, to the extent the purchase or holding of a Certificate
described in this Section 5.02(c) would be restricted by ERISA, the Code or
Similar Law, each Certificate Owner of such Certificate shall be deemed to
represent that it is not a Person specified in clause (i)(a) or (i)(b) of this
Section 5.02(c) and therefore shall not be required pursuant to this Section
5.02(c) to deliver to the Certificate Registrar the representation letter in the
form of Exhibit E attached hereto described in clause (i) of this Section
5.02(c), or the Opinion of Counsel or other certification described in clause
(ii) of this Section 5.02(c). Any transfer, sale, pledge or other disposition of
any such Certificates that would constitute or result in a prohibited
transaction under ERISA, Section 4975 of the Code or any Similar Law, or would
otherwise violate the provisions of this Section 5.02(c) shall be deemed
absolutely null and void ab initio, to the extent permitted under applicable
law.
Each person owning a beneficial interest in a Certificate shall be
deemed to represent that neither such Person nor any owner of a five percent or
greater interest in such Person is an employer with employees covered by the
General Electric Pension Trust.
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 Certificate Administrator
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 Certificate Administrator 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 Certificate
Administrator, 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 Certificate Administrator 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
Certificate Administrator 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 Certificate Administrator 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 Certificate Administrator (or such Certificate Owner)
to confirm that, it has (i) sole investment discretion with respect to each such
account and (ii) full power to make the acknowledgments, representations,
warranties, certification and agreements with respect to each such account as
set forth in subsections (b), (c) and (d), as applicable, of this Section 5.02.
(l) Each investor in the Certificates will be deemed, by its
investment in such Certificates, to represent that neither (a) the investor nor
(b) any owner of a five percent or greater interest in the investor is an
employer with employees covered by the General Electric Pension Trust. Any
transfer in violation of this deemed representation will be void ab initio.
(m) Any Holder of an interest in a Regulation S Global Certificate
in respect of the Certificates shall have the right, upon prior written notice
to the Depositor, the Certificate Administrator, 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 Certificate Administrator, 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
Certificate Administrator, (i) the Certificate Administrator 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 Certificate Administrator 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 Certificate Administrator.
Section 5.03 Book-Entry Certificates.
(a) The Class A-1, Class A-2, Class A-3, Class A-SB, Class A-4,
Class A-1A, Class A-M, Class A-J, Class XW, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O,
Class P, Class Q and Class S Certificates shall initially be issued as one or
more Certificates registered in the name of the Depository or its nominee and,
except as provided in subsection (c) of this Section 5.03, transfer of such
Certificates may not be registered by the Certificate Registrar unless such
transfer is to a successor Depository that agrees to hold such Certificates for
the respective Certificate Owners with Ownership Interests therein. Such
Certificate Owners shall hold and transfer their respective Ownership Interests
in and to such Certificates through the book-entry facilities of the Depository
and, except as provided in subsection (c) of this Section 5.03, shall not be
entitled to fully registered, physical Certificates (each a "Definitive
Certificate") in respect of such Ownership Interests. All transfers by
Certificate Owners of their respective Ownership Interests in the Book-Entry
Certificates shall be made in accordance with the procedures established by the
Depository Participant or brokerage firm representing each such Certificate
Owner (in addition to the procedures established under this Agreement and, if
applicable, those of Euroclear and Clearstream). Each Depository Participant
shall only transfer the Ownership Interests in the Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures. None of the
Certificate Registrar, the Trustee or the Certificate Administrator 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 Certificate Administrator, 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 Certificate Administrator 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 or
the Certificate Administrator).
(c) If (i)(A) the Depositor advises the Certificate Administrator
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 Certificate
Administrator, 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 Certificate Administrator 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
Certificate Administrator, 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 Certificate Administrator 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 Certificate Administrator 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, Certificate Administrator
or the Certificate Registrar that such Certificate has been acquired by a bona
fide purchaser, the Certificate Administrator 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 Certificate Administrator 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 Certificate Administrator 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
Certificate Administrator, 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 Certificate Administrator, 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 Section
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
Certificate Administrator shall make such determination based on a certificate
of such Person that shall specify, in reasonable detail satisfactory to the
Certificate Administrator, 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 Certificate Administrator
shall not knowingly recognize such Person as a Certificate Owner if such Person,
to the knowledge of a Responsible Officer of the Certificate Administrator,
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
Certificate Administrator 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 Certificate
Administrator 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 Certificate Administrator.
Section 5.07 Regarding the Identification of Certain
Certificateholders.
For purposes of determining the identity of the Holders of the
Non-Registered Certificates (except a Class V, Class R-I or Class R-II
Certificate) to whom certain reports and other information are required to be
delivered hereunder, the Trustee, the Certificate Administrator and the Master
Servicer may rely, with respect to any such Certificates outstanding in
book-entry form, on a certification, given to the Trustee, the Certificate
Administrator 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 Certificate Administrator 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, the Trustee and the Certificate Administrator of any such merger,
conversion or consolidation at least two Business Days prior to the effective
date thereof and shall provide the Depositor, the Trustee and Certificate
Administrator with all information reasonably requested by the Depositor to
comply with its reporting obligation under Item 6.02 of Form 8-K not later than
the effective date of such merger, conversion or consolidation.
Section 6.03 Limitation on Liability of the Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator and Others.
(a) None of the Depositor, the Master Servicer, the Special
Servicer, the REMIC Administrator or any director, officer, employee or agent of
any of the foregoing shall be under any liability to the Trust, the
Certificateholders or any Companion Loan Holder (in the case of a Whole Loan)
for any action taken, or not taken, in good faith pursuant to this Agreement, or
for errors in judgment; provided, however, this provision shall not protect the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator or
any such other Person against any breach of a representation or warranty made
herein, or against any expense or liability specifically required to be borne
thereby pursuant to the terms hereof, or against any liability that would
otherwise be imposed by reason of willful misfeasance, bad faith or negligence
in the performance of obligations or duties hereunder, or by reason of negligent
or reckless disregard of such obligations and duties. The Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator and any director,
manager, member, officer, employee or agent (including Sub-Servicers) of any of
the foregoing may rely in good faith on any document of any kind that, prima
facie, is properly executed and submitted by any Person respecting any matters
arising hereunder. The Depositor, the Master Servicer, the Special Servicer, the
REMIC Administrator and any director, manager, member, officer, employee or
agent (including Sub-Servicers) of any of the foregoing shall be indemnified and
held harmless by the Trust against any loss, liability or expense, including
reasonable attorneys' fees, expenses of counsel and expenses of litigation,
incurred in connection with any claims or legal action relating to this
Agreement, the Certificates or any asset of the Trust, other than any loss,
liability or expense: (i) specifically required to be borne by such Person
pursuant to the terms hereof, including, without limitation, Section 10.01(h);
or (ii) that was incurred in connection with claims against such party resulting
from (A) any breach of a representation or warranty made herein by such party,
(B) willful misfeasance, bad faith, recklessness or negligence in the
performance of obligations or duties hereunder by such party, or from negligent
or reckless disregard of such obligations or duties, or (C) any violation by
such party of any state or federal securities law. None of the Depositor, the
Master Servicer, the Special Servicer or the REMIC Administrator shall be under
any obligation to appear in, prosecute or defend any legal action unless such
action is related to its respective duties under this Agreement and, except in
the case of a legal action contemplated by Section 3.22, in its opinion does not
involve it in any ultimate expense or liability; provided, however, the
Depositor, the Master Servicer, the Special Servicer or the REMIC Administrator
may in its discretion undertake any such action that it may deem necessary or
desirable with respect to the enforcement and/or protection of the rights and
duties of the parties hereto and the interests of the Certificateholders, or if
a Serviced Whole Loan is affected, the interests of the Certificateholders and
the related Companion Loan Holder (as a collective whole and, in the case of a
Serviced Whole Loan that is an A/B Whole Loan, taking into account the
subordination of the related Companion Loan); provided, however, if a Serviced
Whole Loan and/or a Companion Loan Holder is involved, such expenses, costs and
liabilities shall be payable out of the related Serviced Whole Loan Custodial
Account and shall also be payable out of the Certificate Account if (A) amounts
on deposit in the related Serviced Whole Loan Custodial Account are insufficient
therefor and (B) either (i) such expenses, costs and liabilities do not relate
solely to such Companion Loan or (ii) if such expenses, costs and liabilities
relate solely to such Companion Loan, only to the extent of deposits in the
Certificate Account related directly to the Serviced Whole Loan. In such event,
the legal expenses and costs of such action, and any liability resulting
therefrom, shall be expenses, costs and liabilities of the Trust, and the
Depositor, the Master Servicer, the Special Servicer and the REMIC Administrator
each shall be entitled to the direct payment of such expenses or to be
reimbursed therefor from the Certificate Account as provided in Section 3.05(a)
(or, if and to the extent the matter relates solely to the Companion Loan
related to a Serviced Whole Loan, out of the related Serviced Whole Loan
Custodial Account and out of the Certificate Account to the extent of deposits
therein related directly to the Serviced Whole Loan). For the avoidance of
doubt, such expenses, costs and liabilities shall not be deemed to relate solely
to the Companion Loan related to a Serviced Whole Loan for the sole reason that
the related action was instituted by or against the related Companion Loan
Holder.
(b) The Sawgrass Xxxxx Master Servicer, Sawgrass Xxxxx Special
Servicer, Sawgrass Xxxxx Depositor and the Sawgrass Xxxxx Trustee, and any of
their respective directors, officers, employees or agents (collectively, the
"Sawgrass Xxxxx Indemnified Parties"), shall be indemnified by the Trust and
held harmless against the Trust's pro rata share (subject to the Sawgrass Xxxxx
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 Sawgrass Xxxxx Whole Loan under the Sawgrass Xxxxx
Servicing Agreement or this Agreement (but excluding any such losses allocable
to any Sawgrass Xxxxx Companion Loan), reasonably requiring the use of counsel
or the incurring of expenses other than any losses incurred by reason of any
Sawgrass Xxxxx 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 Sawgrass Xxxxx Servicing Agreement. The indemnification
provided herein shall survive the termination of this Agreement and the
termination or resignation of the Sawgrass Xxxxx Master Servicer, the Sawgrass
Xxxxx Trustee and the Sawgrass Xxxxx Special Servicer.
(c) The Arundel Xxxxx Master Servicer, Arundel Xxxxx Special
Servicer, Arundel Xxxxx Depositor and the Arundel Xxxxx Trustee, and any of
their respective directors, officers, employees or agents (collectively, the
"Arundel Xxxxx Indemnified Parties"), shall be indemnified by the Trust and held
harmless against the Trust's pro rata share (subject to the Arundel Xxxxx
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 Arundel Xxxxx Xxxx Passu Whole Loan under the
Arundel Xxxxx Servicing Agreement or this Agreement (but excluding any such
losses allocable to any Arundel Xxxxx Xxxx Passu Companion Loan), reasonably
requiring the use of counsel or the incurring of expenses other than any losses
incurred by reason of any Arundel Xxxxx 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 Arundel Xxxxx Servicing Agreement.
The indemnification provided herein shall survive the termination of this
Agreement and the termination or resignation of the Arundel Xxxxx Master
Servicer, the Arundel Xxxxx Trustee and the Arundel Xxxxx Special Servicer.
(d) The CVS Portfolio Louisiana Master Servicer, CVS Portfolio
Louisiana Special Servicer, CVS Portfolio Louisiana Depositor and the CVS
Portfolio Louisiana Trustee, and any of their respective directors, officers,
employees or agents (collectively, the "CVS Portfolio Louisiana Indemnified
Parties"), shall be indemnified by the Trust and held harmless against the
Trust's pro rata share (subject to the CVS Portfolio Louisiana 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 CVS Portfolio Louisiana Whole Loan under the CVS
Portfolio Louisiana Servicing Agreement or this Agreement (but excluding any
such losses allocable to any CVS Portfolio Louisiana Companion Loan), reasonably
requiring the use of counsel or the incurring of expenses other than any losses
incurred by reason of any CVS Portfolio Louisiana 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 CVS Portfolio
Louisiana Servicing Agreement. The indemnification provided herein shall survive
the termination of this Agreement and the termination or resignation of the CVS
Portfolio Louisiana Master Servicer, the CVS Portfolio Louisiana Trustee and the
CVS Portfolio Louisiana Special Servicer.
(e) The CVS Portfolio Texas Master Servicer, CVS Portfolio Texas
Special Servicer, CVS Portfolio Texas Depositor and the CVS Portfolio Texas
Trustee, and any of their respective directors, officers, employees or agents
(collectively, the "CVS Portfolio Texas Indemnified Parties"), shall be
indemnified by the Trust and held harmless against the Trust's pro rata share
(subject to the CVS Portfolio Texas 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 CVS
Portfolio Texas Whole Loan under the CVS Portfolio Texas Servicing Agreement or
this Agreement (but excluding any such losses allocable to any CVS Portfolio
Texas Companion Loan), reasonably requiring the use of counsel or the incurring
of expenses other than any losses incurred by reason of any CVS Portfolio Texas
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 CVS Portfolio Texas Servicing Agreement. The indemnification
provided herein shall survive the termination of this Agreement and the
termination or resignation of the CVS Portfolio Texas Master Servicer, the CVS
Portfolio Texas Trustee and the CVS Portfolio Texas Special Servicer.
(f) The CVS - Gulfport Master Servicer, CVS - Gulfport Special
Servicer, CVS - Gulfport Depositor and the CVS - Gulfport Trustee, and any of
their respective directors, officers, employees or agents (collectively, the
"CVS - Gulfport Indemnified Parties"), shall be indemnified by the Trust and
held harmless against the Trust's pro rata share (subject to the CVS - Gulfport
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 CVS - Gulfport Whole Loan under the CVS - Gulfport
Servicing Agreement or this Agreement (but excluding any such losses allocable
to any CVS - Gulfport Companion Loan), reasonably requiring the use of counsel
or the incurring of expenses other than any losses incurred by reason of any CVS
- Gulfport 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 CVS - Gulfport Servicing Agreement. The indemnification
provided herein shall survive the termination of this Agreement and the
termination or resignation of the CVS - Gulfport Master Servicer, the CVS -
Gulfport Trustee and the CVS - Gulfport 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, the Trustee and the
Certificate Administrator 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, the Trustee and the Certificate
Administrator, 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, the Trustee and
the Certificate Administrator 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 none of the Depositor, the
Trustee or the Certificate Administrator 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, the Trustee or
the Certificate Administrator, as applicable, is required to do so under
applicable securities law or is compelled to do so as a matter of law. The
Depositor may, but is not obligated to, enforce the obligations of the Master
Servicer, the Special Servicer and the REMIC Administrator hereunder and may,
but is not obligated to, perform, or cause a designee to perform, any defaulted
obligation of the Master Servicer, the Special Servicer or the REMIC
Administrator hereunder or, in connection with a default thereby, exercise the
rights of the Master Servicer, the Special Servicer or the REMIC Administrator
hereunder; provided, however, none of the Master Servicer, the Special Servicer
or the REMIC Administrator shall be relieved of any of its obligations hereunder
by virtue of such performance by the Depositor or its designee. The Depositor
shall not have any responsibility or liability for any action or failure to act
by the Master Servicer, the Special Servicer or the REMIC Administrator and is
not obligated to supervise the performance of the Master Servicer, the Special
Servicer or the REMIC Administrator under this Agreement or otherwise.
ARTICLE VII
DEFAULT
Section 7.01 Events of Default.
(a) "Event of Default", wherever used herein, unless the context
otherwise requires, means any one of the following events:
(i) any failure by the Master Servicer (A) to deposit into the
Certificate Account or a Serviced Whole Loan Custodial Account any amount
required to be so deposited under this Agreement that continues unremedied
for three Business Days following the date on which such deposit was first
required to be made, but in no event later than the Master Servicer
Remittance Date before the related Distribution Date, or (B) to deposit
into, or to remit to the Certificate Administrator for deposit into, the
Distribution Account on any Master Servicer Remittance Date, the full
amount of any Master Servicer Remittance Amount and Withheld Amounts,
respectively, required to be so deposited or remitted under this Agreement
on such date; provided that if the Master Servicer fails to make any
deposit contemplated by this Section 7.01(a)(i)(B), then the Master
Servicer shall pay to the Certificate Administrator, for the account of
the Certificate Administrator, interest on such late remittance at the
Reimbursement Rate from and including such Master Servicer Remittance Date
to but excluding the related Distribution Date; or
(ii) any failure by the Special Servicer to deposit into, or to
remit to the Master Servicer for deposit into, the Certificate Account or
a Serviced Whole Loan Custodial Account or the applicable REO Account any
amount required to be so deposited or remitted under this Agreement that
continues unremedied for two Business Days following the date on which
such deposit or remittance was first required to be made, but in no event
later than two Business Days before the related Distribution Date; or
(iii) any failure by the Master Servicer to remit to the Certificate
Administrator for deposit into the Distribution Account, on any Master
Servicer Remittance Date, the full amount of P&I Advances required to be
made on such date unless wired by 10:00 a.m. on the Distribution Date;
provided that if the Master Servicer fails to make any deposit
contemplated by this Section 7.01(a)(iii), then the Master Servicer shall
pay to the Certificate Administrator, for the account of the Certificate
Administrator, interest on such late remittance at the Reimbursement Rate
from and including such Master Servicer Remittance Date to but excluding
the related Distribution Date; or
(iv) any failure by the Master Servicer to timely make any Servicing
Advance required to be made by it pursuant to this Agreement, which
failure continues unremedied for a period of three Business Days following
the date on which notice shall have been given to the Master Servicer by
the Trustee or by any other party to this Agreement, as provided in
Section 3.11(f); or
(v) any failure by the Special Servicer to timely direct the Master
Servicer to make any Servicing Advance (including any Emergency Advance)
required to be made by the Master Servicer at its direction pursuant to
this Agreement, which failure is not remedied by providing direction to
the Master Servicer within three Business Days following the date on which
notice has been given to the Special Servicer by the Trustee as provided
in Section 3.11(f); or
(vi) any failure on the part of the Master Servicer or the Special
Servicer duly to observe or perform in any material respect any other of
the covenants or agreements thereof contained in this Agreement, which
failure continues unremedied for a period of 30 days after the date on
which written notice of such failure, requiring the same to be remedied,
shall have been given to the Master Servicer or the Special Servicer, as
the case may be, by any other party hereto, or to the Master Servicer or
the Special Servicer, as the case may be, with a copy to each other party
hereto, by the Holders of Certificates entitled to at least 25% of the
Voting Rights; provided, however, if such covenant or agreement is capable
of being cured and the Master Servicer or Special Servicer, as applicable,
is diligently pursuing such cure, such 30-day period shall be extended for
an additional 60 days; or
(vii) any failure on the part of the REMIC Administrator duly to
observe or perform in any material respect any of the covenants or
agreements thereof contained in this Agreement, which failure continues
unremedied for a period of 30 days after the date on which written notice
of such failure, requiring the same to be remedied, shall have been given
to the REMIC Administrator by any other party hereto, or to the REMIC
Administrator, with a copy to each other party hereto, by the Holders of
Certificates entitled to at least 25% of the Voting Rights; provided,
however, if such covenant or agreement is capable of being cured and the
REMIC Administrator is diligently pursuing such cure, such 30-day period
shall be extended for an additional 60 days; or
(viii) any breach on the part of the Master Servicer, the Special
Servicer or the REMIC Administrator of any representation or warranty
thereof contained in this Agreement that materially and adversely affects
the interests of any Class of Certificateholders and that continues
unremedied for a period of 30 days after the date on which notice of such
breach, requiring the same to be remedied, shall have been given to the
Master Servicer, the Special Servicer or the REMIC Administrator, as the
case may be, by any other party hereto, or to the Master Servicer, the
Special Servicer or the REMIC Administrator, as the case may be, with a
copy to each other party hereto, by the Holders of Certificates entitled
to at least 25% of the Voting Rights; provided, however, if such
representation or warranty is capable of being cured and the Master
Servicer or Special Servicer, as applicable, is diligently pursuing such
cure, such 30-day period shall be extended for an additional 60 days; or
(ix) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding up or liquidation of its affairs, shall have been entered against
the Master Servicer, the Special Servicer or the REMIC Administrator and
such decree or order shall have remained in force undischarged or unstayed
for a period of 60 days; or
(x) the Master Servicer, the Special Servicer or the REMIC
Administrator shall consent to the appointment of a conservator, receiver,
liquidator, trustee or similar official in any bankruptcy, insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings of or relating to it or of or relating to all or substantially
all of its property; or
(xi) the Master Servicer, the Special Servicer or the REMIC
Administrator shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable bankruptcy, insolvency or reorganization statute, make an
assignment for the benefit of its creditors, voluntarily suspend payment
of its obligations, or take any corporate action in furtherance of the
foregoing; or
(xii) Fitch provides notice to the Master Servicer or the Special
Servicer, as applicable, to the effect that the rating or ratings on one
or more Classes of Certificates will be the subject of a downgrade or
withdrawal, citing servicing concerns relating to the Master Servicer or
the Special Servicer, as the case may be, as the sole or a material factor
in such action; provided, however, the Master Servicer or Special
Servicer, as applicable shall have 60 days to resolve such matters to the
satisfaction of Fitch (or such longer time period as may be agreed in
writing by Fitch) prior to the downgrade of any Class of Certificates and
in such case, such notice from Fitch shall not be deemed to be an Event of
Default; or
(xiii) the Master Servicer shall no longer be rated "CMS3" or higher
by Fitch or the Special Servicer shall no longer be rated "CSS3" or higher
by Fitch, and, in each case, that rating is not restored within 60 days
after the subject downgrade or withdrawal; or
(xiv) either the Master Servicer or the Special Servicer is no
longer listed on S&P's Select Servicer List as a U.S. Commercial Mortgage
Master Servicer or a U.S. Commercial Mortgage Special Servicer, as
applicable, and is not relisted thereon within 60 days.
Each Event of Default listed as items (iv) through (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 clauses (xii) through (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) through (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 clause (ix)
through (xi) of subsection (a) of Section 7.01(a), the Trustee shall, terminate,
by notice in writing to the Defaulting Party (with a copy of such notice to each
other party hereto), all of the rights and obligations (subject to Section 3.11
and Section 6.03, accruing from and after such notice) of the Defaulting Party
under this Agreement and in and to the Loans and the proceeds thereof (other
than as a Holder of a Certificate or a Companion Loan Holder (in the case of a
Whole Loan)). With respect to each of Event of Default listed as clauses (xii)
through (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 this Section 7.01(b) and
Section 7.04, if (i) an Event of Default on the part of the Master Servicer
remains unremedied and materially and adversely affects only a Securitized
Companion Loan (included in a Serviced Whole Loan), (ii) the Master Servicer
fails to make any payment on a Securitized Companion Loan (included in a
Serviced Whole Loan) by the third Business Day following the date required under
the terms of this Agreement, which failure has not been remedied or (iii) any
qualification, downgrade or withdrawal by any Rating Agency of any class of
Companion Loan Securities occurs solely as a result of an action of the Master
Servicer, then the Master Servicer may not be terminated but the holder of such
Securitized Companion Loan (included in a Serviced Whole Loan) or the related
trustee under the related Securitized Companion Loan Servicing Agreement, acting
at the direction of the related directing certificateholder for that
securitization, shall be entitled to direct the Trustee to require the Master
Servicer to appoint a sub-servicer solely with respect to the related Serviced
Whole Loan (or if the related Serviced Whole Loan is currently being
sub-serviced, to replace the current sub-servicer, but only if such current
sub-servicer is in default under the related sub-servicing agreement). The
appointment (or replacement) of a sub-servicer with respect to any Serviced
Whole Loan shall in any event be subject to confirmation from each rating agency
that such appointment would not result in the downgrade, withdrawal or
qualification of the then current ratings on any class of outstanding
Certificates and any class of Companion Loan Securities. A replacement
sub-servicer shall be selected jointly by the Directing Certificateholder and
the holder of the related Securitized Companion Loan (or the related directing
certificateholder, as applicable); provided that if the Directing
Certificateholder and the holder of the related Securitized Companion Loan (or
the related directing certificateholder) are not able to agree on a sub-servicer
within 45 days after the date on which the Trustee was directed to appoint a
sub-servicer or replace the current sub-servicer, such sub-servicer shall be
selected by the Directing Certificateholder. Any such sub-servicer under this
paragraph shall meet the eligibility requirements of Section 7.02 and the
eligibility requirements of the Securitized Companion Loan Servicing Agreement
related to the securitization of the related Securitized Companion Loan
(included in a Serviced Whole Loan). Any appointment of a sub-servicer in
accordance with this paragraph shall be subject to the receipt of a Rating
Agency confirmation with respect to the Certificates and the Companion Loan
Securities. In addition, if the Trustee appoints a sub-servicer solely with
respect to the related Serviced Whole Loan, the Master Servicer shall not be
liable for any losses incurred due to the actions of such sub-servicer.
(c) If any Event of Default with respect to the REMIC Administrator
shall occur and be continuing, then, and in each and every such case, so long as
the Event of Default shall not have been remedied, the Depositor or the Trustee
may, and at the written direction of the Holders of Certificates entitled to at
least 51% of the Voting Rights, the Trustee (or, if the Trustee is also the
REMIC Administrator, the Master Servicer) shall, terminate, by notice in writing
to the REMIC Administrator (with a copy to each of the other parties hereto),
all of the rights and obligations of the REMIC Administrator under this
Agreement. From and after the receipt by the REMIC Administrator of such written
notice (or if the Trustee is also the REMIC Administrator, from and after such
time as another successor appointed as contemplated by Section 7.02 accepts such
appointment), all authority and power of the REMIC Administrator under this
Agreement shall pass to and be vested in the Certificate Administrator (or such
other successor) pursuant to and under this Section 7.01, and, without
limitation, the Certificate Administrator (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 Certificate Administrator (or, if the Certificate
Administrator 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 Certificate Administrator (or such other successor) to assume the
REMIC Administrator's functions hereunder, and to cooperate with the Certificate
Administrator (or such other successor) in effecting the termination of the
REMIC Administrator's responsibilities and rights hereunder (provided, however,
the REMIC Administrator shall continue to be obligated for or entitled to
receive all amounts accrued or owing by or to it under this Agreement on or
prior to the date of such termination, and it and its directors, officers,
employees and agents shall continue to be entitled to the benefits of Section
6.03 notwithstanding any such termination).
(d) Notwithstanding Section 7.01(b), if the Master Servicer receives
a notice of termination under Section 7.01(b) solely due to an Event of Default
under Section 7.01(a)(xii) through (xiv) and if the Master Servicer provides the
Trustee with the appropriate "request for proposal" materials within the five
Business Days after such termination, then such Master Servicer shall continue
to serve as Master Servicer, if requested to do so by the Trustee, and the
Trustee shall promptly thereafter (using such "request for proposal" materials
provided by the terminated Master Servicer) solicit good faith bids for the
rights to master service the Loans under this Agreement from at least three
Persons qualified to act as Master Servicer hereunder in accordance with Section
6.02 and Section 7.02 for which the Trustee has received written confirmation
that the appointment of such person would not result in the downgrade,
withdrawal or qualification of a current rating on any of the Certificates and
that are reasonably acceptable to the Directing Certificateholder (any such
Person so qualified, a "Qualified Bidder") or, if three Qualified Bidders cannot
be located, then from as many Persons as the Trustee can determine are Qualified
Bidders; provided that at the Trustee's request, the terminated Master Servicer
shall supply the Trustee with the names of Persons from whom to solicit such
bids; and provided, further, the Trustee shall not be responsible if less than
three or no Qualified Bidders submit bids for the right to master service the
Loans under this Agreement. Any "Qualified Bidder" referenced hereunder shall be
reasonably acceptable to the Directing Certificateholder. The bid proposal shall
require any Successful Bidder (as defined below), as a condition of such bid, to
enter into this Agreement as successor Master Servicer, and to agree to be bound
by the terms hereof, within 45 days after the termination of Master Servicer.
The Master Servicer shall continue to serve in such capacity hereunder until a
successor thereto is selected in accordance with this Section 7.01(d) or the
expiration of 45 days after the Master Servicer's receipt of notice of
termination, whichever occurs first. The Trustee shall solicit bids (i) on the
basis of such successor Master Servicer retaining all Sub-Servicers to continue
the primary servicing of the Loans pursuant to the terms of the respective
Sub-Servicing Agreements and to enter into a Sub-Servicing Agreement with the
terminated Master Servicer to service each of the Loans not subject to a
Sub-Servicing Agreement at a servicing fee rate per annum equal to the Master
Servicing Fee Rate minus 2.5 basis points per Loan serviced (each, a
"Servicing-Retained Bid") and (ii) on the basis of terminating each
Sub-Servicing Agreement and Sub-Servicer that it is permitted to terminate in
accordance with Section 3.22 (each, a "Servicing-Released Bid"). The Trustee
shall select the Qualified Bidder with the highest cash Servicing-Retained Bid
(or, if none, the highest cash Servicing-Released Bid) (the "Successful Bidder")
to act as successor Master Servicer hereunder. The Trustee shall direct the
Successful Bidder to enter into this Agreement as successor Master Servicer
pursuant to the terms hereof (and, if the successful bid was a
Servicing-Retained Bid, to enter into a Sub-Servicing Agreement with the
terminated Master Servicer as contemplated above), no later than 45 days after
the termination of the Master Servicer.
(e) Upon the assignment and acceptance of the master servicing
rights hereunder to and by the Successful Bidder, the Trustee shall remit or
cause to be remitted (i) if the successful bid was a Servicing-Retained Bid, to
the terminated Master Servicer the amount of such cash bid received from the
Successful Bidder (net of "out-of-pocket" expenses incurred in connection with
obtaining such bid and transferring servicing) and (ii) if the successful bid
was a Servicing-Released Bid, to the Master Servicer and each terminated
Sub-Servicer its respective Bid Allocation.
(f) If the Successful Bidder has not entered into this Agreement as
successor Master Servicer within 45 days after the Trustee was appointed as
successor Master Servicer or no Successful Bidder was identified within such
45-day period, the terminated Master Servicer shall reimburse the Trustee for
all reasonable "out-of-pocket" expenses incurred by the Trustee in connection
with such bid process and the Trustee shall have no further obligations under
this Section 7.01(f). The Trustee thereafter may act or may select a successor
to act as Master Servicer hereunder in accordance with Section 7.02.
Section 7.02 Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer, the Special Servicer or
the REMIC Administrator resigns pursuant to clause (ii) of the first sentence of
Section 6.04 or receives a notice of termination pursuant to Section 7.01, the
Trustee shall be the successor in all respects to the Master Servicer, the
Special Servicer or (unless it has also been acting as such) the REMIC
Administrator, as the case may be, in its capacity as such under this Agreement
and the transactions set forth or provided for herein and shall be subject to
all the responsibilities, duties and liabilities relating thereto and arising
thereafter placed on the Master Servicer, the Special Servicer or the REMIC
Administrator, as the case may be, by the terms and provisions hereof,
including, without limitation, if the Master Servicer is the resigning or
terminated party, the Master Servicer's obligation to make P&I Advances;
provided that any failure to perform such duties or responsibilities caused by
the Master Servicer's, the Special Servicer's or the REMIC Administrator's, as
the case may be, failure to cooperate or to provide information or monies
required by Section 7.01 shall not be considered a default by the Trustee
hereunder. Neither the Trustee nor any other successor shall be liable for any
of the representations and warranties of the resigning or terminated party or
for any losses incurred by the resigning or terminated party pursuant to Section
3.06 hereunder nor shall the Trustee nor any other successor be required to
purchase any Loan hereunder. As compensation therefor, the Trustee shall be
entitled to all fees and other compensation (subject to Section 3.11) that the
resigning or terminated party would have been entitled to for future services
rendered if the resigning or terminated party had continued to act hereunder.
Notwithstanding the above, the Trustee may, if it shall be unwilling to so act,
or shall, if it is unable to so act, or is not approved by each and every Rating
Agency as an acceptable master servicer or special servicer, as the case may be,
of commercial mortgage loans; or if the Directing Certificateholder or if the
Holders of Certificates entitled to at least 51% of the Voting Rights so request
in writing to the Trustee; or if the REMIC Administrator is the resigning or
terminated party and the Trustee had been acting in such capacity, promptly
appoint, or petition a court of competent jurisdiction to appoint, any
established and qualified institution as the successor to the Master Servicer,
the Special Servicer or the REMIC Administrator, as the case may be, hereunder
in the assumption of all or any part of the responsibilities, duties or
liabilities of the Master Servicer, the Special Servicer or the REMIC
Administrator, as the case may be, hereunder; provided that, in the case of a
successor Master Servicer, such successor has been approved by the Directing
Certificateholder, which consent with respect to the Master Servicer shall not
be unreasonably withheld or delayed; provided that such appointment does not
result in the downgrading, qualification (if applicable) or withdrawal of any
rating then assigned by any Rating Agency to any Class of Certificates or
Companion Loan Securities (as evidenced by written confirmation thereof from
each Rating Agency); provided, further in the case of a resigning or terminated
Special Servicer, such appointment shall be subject to the rights of the
Majority Certificateholder of the Controlling Class to designate a successor
pursuant to Section 3.23. No appointment of a successor to the Master Servicer,
the Special Servicer or the REMIC Administrator hereunder shall be effective
until the assumption of the successor to such party of all its responsibilities,
duties and liabilities hereunder. Pending appointment of a successor to the
Master Servicer, the Special Servicer or the REMIC Administrator hereunder, the
Trustee shall act in such capacity as hereinabove provided. Notwithstanding the
above, the Trustee shall, if the Master Servicer is the resigning or terminated
party and the Trustee is prohibited by law or regulation from making P&I
Advances, promptly appoint any established mortgage loan servicing institution
that has a net worth of not less than $15,000,000 and is otherwise acceptable to
each Rating Agency (as evidenced by written confirmation therefrom to the effect
that the appointment of such institution would not cause the qualification,
downgrading or withdrawal of the then current rating on any Class of
Certificates or Companion Loan Securities), as the successor to the Master
Servicer hereunder in the assumption of all or any part of the responsibilities,
duties or liabilities of the Master Servicer hereunder (including, without
limitation, the obligation to make P&I Advances), which appointment will become
effective immediately. Subject to Section 3.11 and in connection with any such
appointment and assumption described herein, the Trustee may make such
arrangements for the compensation of such successor out of payments on or in
respect of the Mortgage Loans or otherwise as it and such successor shall agree;
provided, however, no such compensation shall be in excess of that permitted the
resigning or terminated party hereunder. The Depositor, the Trustee, such
successor and each other party hereto shall take such action, consistent with
this Agreement, as shall be necessary to effectuate any such succession. Any
costs and expenses associated with the transfer of the foregoing functions under
this Agreement (other than the set-up costs of the successor) shall be borne by
the predecessor Master Servicer, Special Servicer or REMIC Administrator, as
applicable, and, if not paid by such predecessor Master Servicer, Special
Servicer or REMIC Administrator within 30 days of its receipt of an invoice
therefor, shall be an expense of the Trust; provided that such predecessor
Master Servicer, Special Servicer or REMIC Administrator shall reimburse the
Trust for any such expense so incurred by the Trust; and provided, further, if
the Trustee is directed to do so by the Directing Certificateholder, the Trustee
shall pursue any remedy against any party obligated to make such reimbursement.
Section 7.03 Form 8-K Information; Notification to
Certificateholders.
(a) The predecessor and successor Master Servicer shall each provide
the Depositor and the Certificate Administrator 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 Certificate Administrator shall give prompt written notice thereof to
Certificateholders at their respective addresses appearing in the Certificate
Register.
(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 Certificate
Administrator 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
Certificate Administrator shall transmit by mail to the other non-defaulting
parties hereto and all Certificateholders 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 AND THE CERTIFICATE ADMINISTRATOR
Section 8.01 Duties of Trustee and the Certificate Administrator.
(a) Each of the Trustee and the Certificate Administrator, 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 each of the
Trustee and the Certificate Administrator 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 and the Certificate
Administrator 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 would exercise or use under the circumstances in the
conduct of his own affairs (whichever standard would be higher). Any permissive
right of the Trustee or the Certificate Administrator, as applicable, contained
in this Agreement shall not be construed as a duty.
(b) Each of the Trustee and the Certificate Administrator, upon
receipt of all resolutions, certificates, statements, opinions, reports,
documents, orders or other instruments furnished to the Trustee and the
Certificate Administrator, as applicable, 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 or the
Certificate Administrator, as applicable, shall take such action as it deems
appropriate to have the instrument corrected. Neither the Trustee nor the
Certificate Administrator shall be responsible for, but each 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 or the Certificate Administrator, as applicable, in good
faith, pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee or the Certificate Administrator from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct;
provided, however:
(i) Each of the Certificate Administrator's, and prior to the
occurrence of an Event of Default, and after the curing of all such Events
of Default which may have occurred, the Trustee's, duties and obligations
shall be determined solely by the express provisions of this Agreement,
and it shall not be liable except for the performance of its 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 or the Certificate Administrator, as applicable, and, in the
absence of bad faith on the part of the Trustee or the Certificate
Administrator, as applicable, may each conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed therein,
upon any certificates or opinions furnished to it and conforming to the
requirements of this Agreement;
(ii) Neither the Trustee nor the Certificate Administrator shall be
personally liable for an error of judgment made in good faith by a
Responsible Officer or Responsible Officers of the Trustee or the
Certificate Administrator, as applicable, unless it shall be proved that
the Trustee or the Certificate Administrator, as applicable, was negligent
in ascertaining the pertinent facts; and
(iii) Neither the Trustee nor the Certificate Administrator shall 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 it, or exercising any trust or
power conferred upon it, under this Agreement.
(d) The Trustee and the Certificate Administrator each hereby
indemnify and holds the Trust harmless for all losses, liabilities and damages
incurred by the Trust or the Certificateholders by virtue of the negligence or
fraud on the part of the Trustee or the Certificate Administrator, respectively.
Section 8.02 Certain Matters Affecting the Trustee and the
Certificate Administrator.
Except as otherwise provided in Section 8.01:
(a) Each of the Trustee and the Certificate Administrator 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) Each of the Trustee and the Certificate Administrator 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) Neither the Trustee nor the Certificate Administrator shall be
under any 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 or the Certificate Administrator, as applicable,
reasonable security or indemnity against the costs, expenses and liabilities
that may be incurred therein or thereby; provided, further, neither the Trustee
nor the Certificate Administrator shall 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 or the
Certificate Administrator 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) Neither the Trustee nor the Certificate Administrator shall 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, neither
the Trustee nor the Certificate Administrator shall 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 or the
Certificate Administrator 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 or the Certificate Administrator, not reasonably assured to it by the
security afforded to it by the terms of this Agreement, the Trustee or the
Certificate Administrator, as applicable, may require reasonable indemnity
against such expense or liability as a condition to taking any such action;
(f) Each of the Trustee and the Certificate Administrator 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 or the
Certificate Administrator, as applicable, from any of its obligations hereunder,
and the Trustee or the Certificate Administrator, as applicable, shall remain
responsible for all acts and omissions of any such agent or attorney-in-fact;
(g) For all purposes under this Agreement, neither the Trustee nor
the Certificate Administrator shall be deemed to have notice of any Event of
Default hereunder unless a Responsible Officer of the Trustee or the Certificate
Administrator, as applicable, has actual knowledge thereof or unless written
notice of any event that is in fact such a default is received by the Trustee or
the Certificate Administrator, as applicable, at its Corporate Trust Office, and
such notice references the Certificates or this Agreement; and
(h) Neither the Trustee nor the Certificate Administrator shall be
responsible for any act or omission of the Master Servicer, the Special Servicer
or the REMIC Administrator (unless the Trustee or the Certificate Administrator,
as applicable, 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 Seller.
Section 8.03 Neither Trustee nor Certificate Administrator is 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 or the Certificate Administrator, as applicable, in Article II and
the certificate of authentication executed by the Certificate Administrator 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 neither the Trustee nor the
Certificate Administrator assumes any responsibility for their correctness.
Neither the Trustee nor the Certificate Administrator makes any representations
as to the validity or sufficiency of this Agreement (other than as specifically
set forth in Section 2.07 or Section 2.08, as applicable) or of any Certificate
(other than as to the signature of the Certificate Administrator set forth
thereon) or of any Loan or related document. Neither the Trustee nor the
Certificate Administrator shall 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. Neither the Trustee nor the Certificate Administrator shall
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 or the Certificate Administrator, as applicable, in
good faith, pursuant to this Agreement.
Section 8.04 Trustee and Certificate Administrator May Own
Certificates.
The Trustee and the Certificate Administrator, each, in its
individual or any other capacity, and any agent of the Trustee and Certificate
Administrator, respectively, 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 the Certificate
Administrator or such agent, as the case may be.
Section 8.05 Fees of and Expenses of Trustee and Certificate
Administrator; Indemnification of Trustee and Certificate Administrator.
(a) The Certificate Administrator shall pay to itself and the
Trustee 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 (a
portion of which shall be paid to the Certificate Administrator) for such
Distribution Date and, to the extent not previously received, for each prior
Distribution Date.
(b) The Trustee and the Certificate Administrator and any director,
officer, employee or agent of the Trustee or the Certificate Administrator, as
applicable (whether in their Trustee or Certificate Administrator, as
applicable, capacity or individually), or Person, if any, who controls the
Trustee or the Certificate Administrator, as applicable, 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 or the Certificate
Administrator, as applicable, hereunder and any other "unanticipated expenses"
(similar to those defined in Treasury Regulations Section 1.860G-1(b)(3)(ii)) of
the Trustee and the Certificate Administrator; provided that the neither the
Trustee nor the Certificate Administrator shall 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 or the Certificate
Administrator, as applicable, in the normal course of its 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 obligations and
duties of the Trustee or the Certificate Administrator, as applicable,
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 or the Certificate Administrator, as applicable, made herein. The
provisions of this Section 8.05(b) shall (i) survive any resignation or removal
of the Trustee or the Certificate Administrator, as applicable, and appointment
of a successor and (ii) extend to any other role that the Trustee or the
Certificate Administrator, as applicable, may assume hereunder, including
without limitation REMIC Administrator, Custodian and/or Certificate Registrar.
Section 8.06 Eligibility Requirements for Trustee and the
Certificate Administrator.
Each of the Trustee and the Certificate Administrator 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
unsecured short term debt of the Trustee or the Certificate Administrator, as
applicable, is rated at least "A-1" by S&P) and whose short-term unsecured debt
obligations are rated not less than "F-1" by Fitch (or, in the case of each
Rating Agency, such other rating as each such Rating Agency shall permit so long
as it is accompanied by a statement in writing that any of the then-current
ratings assigned by such Rating Agency to the respective Classes of the
Certificates or Companion Loan Securities would not be downgraded, qualified (if
applicable) or withdrawn as a result of such rating). If such corporation, trust
company, bank or banking association publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then, for the purposes of this Section 8.06, the combined
capital and surplus of such corporation, trust company, bank or banking
association shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. No Person shall become a
successor trustee or successor certificate administrator 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 or the Certificate Administrator, as applicable, shall cease to be
eligible in accordance with the provisions of this Section 8.06, the Trustee or
the Certificate Administrator, as applicable, 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) the Trustee
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 the Trustee or the Certificate Administrator 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 or Certificate
Administrator.
(a) Either of the Trustee or the Certificate Administrator 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 and all Certificateholders and all Companion
Loan Holders. In addition if the Trustee or the Certificate Administrator
resigns or is discharged, then any fiscal agent appointed by the Trustee or the
Certificate Administrator, as applicable, shall also be deemed to have resigned
or have been discharged. Upon receiving such notice of resignation, the
Depositor shall promptly appoint a successor acceptable to the Master Servicer
by written instrument, in duplicate, which instrument shall be delivered to the
resigning Trustee or the resigning Certificate Administrator, as applicable, and
to the successor. A copy of such instrument shall be delivered to the Master
Servicer, the Special Servicer, the REMIC Administrator and the
Certificateholders by the Depositor. If no successor trustee or successor
certificate administrator, as applicable, shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee or the resigning Certificate Administrator,
as applicable, may petition any court of competent jurisdiction for the
appointment of a successor.
(b) If at any time that either the Trustee or the Certificate
Administrator 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 either the Trustee or
the Certificate Administrator shall become incapable of acting, or shall be
adjudged bankrupt or insolvent, or a receiver of the Trustee or the Certificate
Administrator or of its property shall be appointed, or any public officer shall
take charge or control of the Trustee or the Certificate Administrator or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Depositor may remove the Trustee or the Certificate
Administrator, as applicable, and appoint a successor trustee or a successor
certificate administrator, as applicable, acceptable to the Master Servicer by
written instrument, in duplicate, which instrument shall be delivered to the
Trustee or the Certificate Administrator, as applicable, so removed and to the
successor trustee or the successor certificate administrator, as applicable. A
copy of such instrument shall be delivered to the Master Servicer, the Special
Servicer, the Directing Certificateholder, each Companion Loan Holder, the REMIC
Administrator and the Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to at least 33-1/3% of the
Voting Rights may at any time remove the Trustee or the Certificate
Administrator and appoint a successor trustee or a successor certificate
administrator 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 or the Certificate Administrator so removed and one complete set to
the successor so appointed; provided that the Master Servicer, each Companion
Loan Holder, the Depositor and the remaining Certificateholders shall have been
notified; and provided further other Holders of the Certificates entitled to a
greater percentage of the Voting Rights shall not have objected to such removal
in writing to the Master Servicer and the Depositor within 30 days of their
receipt of notice thereof. A copy of such instrument shall be delivered to the
Depositor, the Special Servicer, the REMIC Administrator and the remaining
Certificateholders by the Master Servicer. If the Trustee or the Certificate
Administrator is removed under this Agreement without cause, all reasonable
costs and expenses incurred by the Trustee or the Certificate Administrator, as
applicable, (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 or the Certificate
Administrator and appointment of a successor trustee or a successor certificate
administrator pursuant to any of the provisions of this Section 8.07 shall not
become effective until acceptance of appointment by the successor trustee or the
successor certificate administrator, as applicable, as provided in Section 8.08;
and no such resignation or removal of the Trustee or the Certificate
Administrator and/or appointment of a successor trustee or a successor
certificate administrator shall be permitted, unless, as confirmed in writing by
each Rating Agency, such resignation or removal and appointment would not result
in the downgrade, qualification (if applicable) or withdrawal of the rating
assigned by any Rating Agency to any Class of Certificates or Companion Loan
Securities. The Master Servicer shall give notice to each Companion Loan Holder
of any resignation or removal of the Trustee or the Certificate Administrator
and appointment of a successor.
Section 8.08 Successor Trustee or Successor Certificate
Administrator.
(a) Any successor trustee or any successor certificate administrator
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 or predecessor certificate
administrator an instrument accepting such appointment hereunder, and thereupon
the resignation or removal of the predecessor trustee or predecessor certificate
administrator shall become effective and such successor trustee or such
successor certificate administrator, as applicable, 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 the Trustee or the Certificate Administrator, as applicable,
herein. The predecessor trustee or predecessor certificate administrator, as
applicable, shall deliver to the successor trustee or the certificate
administrator, as applicable, 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 or the
predecessor certificate administrator, as applicable, 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 or the successor
certificate administrator, as applicable, all such rights, powers, duties and
obligations, and to enable such successor to perform its obligations hereunder.
If such predecessor trustee or such predecessor certificate administrator was
removed as the Trustee or the Certificate Administrator, respectively, 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 or successor certificate administrator
shall accept appointment as provided in this Section 8.08 unless at the time of
such acceptance such successor trustee or such successor certificate
administrator shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee or a
successor certificate administrator as provided in this Section 8.08, such
successor trustee or such successor certificate administrator, as applicable,
shall mail notice of the succession to the Depositor and the Certificateholders.
(d) Both the predecessor trustee and the successor trustee and both
the predecessor certificate administrator and the successor certificate
administrator, as applicable, 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 or Certificate
Administrator.
Any entity into which the Trustee or the Certificate Administrator
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 or
the Certificate Administrator shall be a party, or any entity succeeding to the
corporate trust business of the Trustee or the Certificate Administrator, shall
be the successor of the Trustee or the Certificate Administrator, as applicable,
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 or the Certificate Administrator, as
applicable, 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 or the successor to the Certificate
Administrator, as applicable, 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 or the
Certificate Administrator, as applicable, 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 (i) the Depositor or an Affiliate
thereof or (ii) the Mortgage Loan Seller or an Affiliate thereof, unless in
either case the Custodian is unaffiliated with the Trustee. 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, the Certificate
Administrator 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 and the Certificate Administrator 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 and the Certificate
Administrator, the Depositor promptly shall inform the Trustee and the
Certificate Administrator of such event and shall deliver to the Trustee and the
Certificate Administrator ten copies of the private placement memorandum or
disclosure document, as revised, amended or supplemented. The Certificate
Administrator 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
Certificate Administrator 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
Certificate Administrator; and (ii) in all cases, (A) all Officer's Certificates
delivered to the Certificate Administrator since the Closing Date pursuant to
Section 11.09, (B) all accountants' reports delivered to the Certificate
Administrator 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
Certificate Administrator 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 and the Certificate
Administrator by the Master Servicer or the Special Servicer pursuant to Section
3.12(b), (E) any and all notices and reports delivered to the Certificate
Administrator 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 or the Certificate Administrator, as applicable, upon
request; however, the Trustee or the Certificate Administrator, as applicable,
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 or the Certificate Administrator, as applicable, 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 or the Certificate Administrator, as applicable, 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 or the Certificate
Administrator, as applicable, 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, neither the Trustee
nor the Certificate Administrator shall have any 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, the Certificate Administrator and the REMIC
Administrator (other than the obligations of the Certificate Administrator 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
Certificate Administrator and required hereunder to be so paid 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
the 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 the 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 the 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 the
Mortgage Loan Seller) elects to purchase all of the Mortgage Loans and each REO
Property remaining in REMIC I in accordance with the preceding sentence, the
Master Servicer, the Special Servicer or such Majority Certificateholder, as
applicable, shall deposit into the Distribution Account not later than the
Master Servicer Remittance Date relating to the Distribution Date on which the
final distribution on the Certificates is to occur, an amount in immediately
available funds equal to the above-described purchase price (exclusive of any
portion thereof payable to any Person other than the Certificateholders pursuant
to Section 3.05(a), which portion shall be deposited into the Certificate
Account) or, if a Serviced Whole Loan is involved, in the related Serviced Whole
Loan Custodial Account. In addition, the Master Servicer shall transfer all
amounts required to be transferred to the Distribution Account on such Master
Servicer Remittance Date from the Certificate Account or, if a Serviced Whole
Loan is involved, the related Serviced Whole Loan Custodial Account pursuant to
the first paragraph of Section 3.04(e). Upon confirmation that such final
deposits have been made, the Trustee shall release or cause to be released to
the purchaser or its designee, the Mortgage Files for the remaining Mortgage
Loans and shall execute all assignments, endorsements and other instruments
furnished to it by the purchaser, as shall be necessary to effectuate transfer
of the Mortgage Loans and REO Properties remaining in REMIC I.
Following the date on which the Class Principal Balances of the
Investment Grade Sequential Pay Certificates 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, the Trustee
and the Certificate Administrator 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 Certificate Administrator 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 Certificate
Administrator by letter to 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 the 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 Certificate Administrator
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 Certificate Administrator 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 Certificate Administrator, 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 the
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, the Certificate Administrator and the REMIC Administrator an Opinion of
Counsel, addressed to the Trustee, the Certificate Administrator 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 Certificate
Administrator 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.
ARTICLE X
ADDITIONAL REMIC AND GRANTOR TRUST PROVISIONS
Section 10.01 REMIC Administration.
(a) The REMIC Administrator shall elect to treat each of REMIC I and
REMIC II as a REMIC under the Code and, if necessary, under Applicable State
Law. Each such election will be made on Form 1066 or other appropriate federal
or state Tax Returns for the taxable year ending on the last day of the calendar
year in which the Certificates are issued.
(b) The REMIC I Regular Interests are hereby designated as "regular
interests" (within the meaning of Section 860G(a)(1) of the Code), and the
residual interest in REMIC I, represented by the Class R-I Certificates, is
hereby designated as the sole Class of "residual interests" (within the meaning
of Section 860G(a)(2) of the Code), in REMIC I. The Class A-1, Class X-0, Xxxxx
X-0, Class A-SB, 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 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, the Trustee
or the Certificate Administrator 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 is the Rated Final Distribution Date.
(d) The REMIC Administrator is hereby designated as agent for the
Tax Matters Person of each of REMIC I and REMIC II and shall: act on behalf of
the Trust in relation to any tax matter or controversy, represent the Trust in
any administrative or judicial proceeding relating to an examination or audit by
any governmental taxing authority, request an administrative adjustment as to
any taxable year of REMIC I or REMIC II, enter into settlement agreements with
any governmental taxing agency, extend any statute of limitations relating to
any tax item of REMIC I or REMIC II, and otherwise act on behalf of each of
REMIC I and REMIC II in relation to any tax matter or controversy involving such
REMIC. By their acceptance thereof, the Holders of the REMIC Residual
Certificates hereby agree to irrevocably appoint the REMIC Administrator as
their agent to perform all of the duties of the Tax Matters Person for REMIC I
and REMIC II. Subject to Section 10.01(g), the legal expenses and costs of any
action described in this subsection (d) and any liability resulting therefrom
shall be expenses, costs and liabilities of the Trust, and the REMIC
Administrator shall be entitled to be reimbursed therefor out of any amounts on
deposit in the Distribution Account as provided by Section 3.05(b).
(e) The REMIC Administrator shall prepare and file or cause to be
prepared and filed, and the Trustee shall sign, all of the Tax Returns in
respect of each of REMIC I and REMIC II. The expenses of preparing and filing
such returns shall be borne by the REMIC Administrator without any right of
reimbursement therefor.
(f) The REMIC Administrator shall perform or cause to be performed
on behalf of each of REMIC I and REMIC II all reporting and other tax compliance
duties that are the responsibility of each such REMIC under the Code, the REMIC
Provisions or other compliance guidance issued by the IRS or any other taxing
authority under Applicable State Law. Included among such duties, the REMIC
Administrator shall provide, or cause to be provided: (i) to any Transferor of a
REMIC Residual Certificate and the IRS, such information as is necessary for the
application of any tax relating to the transfer of a REMIC Residual Certificate
to any Person who is a Disqualified Organization; (ii) to the
Certificateholders, such information or reports as are required by the Code or
the REMIC Provisions, including, without limitation, reports relating to
interest, original issue discount and market discount or premium (using the
Prepayment Assumption as required); and (iii) with respect to REMIC II, Form
8811, or other applicable form, to the IRS, and the name, title, address and
telephone number of the Person who will serve as the representative of REMIC II.
(g) The REMIC Administrator shall perform its duties more
specifically set forth hereunder in a manner consistent with maintaining the
status of each of REMIC I and REMIC II as a REMIC under the REMIC Provisions
(and each of the other parties hereto shall assist it, to the extent reasonably
requested by it). The REMIC Administrator shall not knowingly take (or cause
either REMIC I or REMIC II to take) any action or fail to take (or fail to cause
to be taken) any action within the scope of its duties more specifically set
forth hereunder that, under the REMIC Provisions, if taken or not taken, as the
case may be, could result in an Adverse REMIC Event with respect to REMIC I or
REMIC II, unless the REMIC Administrator has received an Opinion of Counsel to
the effect that the contemplated action will not result in an Adverse REMIC
Event. None of the other parties hereto shall take any action (whether or not
authorized hereunder) as to which the REMIC Administrator has advised it in
writing that it has received an Opinion of Counsel to the effect that an Adverse
REMIC Event could occur with respect to such action. In addition, prior to
taking any action with respect to REMIC I or REMIC II, or causing REMIC I or
REMIC II to take any action, that is not expressly permitted under the terms of
this Agreement, each of the other parties hereto will consult with the REMIC
Administrator, in writing, with respect to whether such action could cause an
Adverse REMIC Event to occur. None of the parties hereto shall take any such
action or cause REMIC I or REMIC II to take any such action as to which the
REMIC Administrator has advised it in writing that an Adverse REMIC Event could
occur. The REMIC Administrator may consult with counsel to make such written
advice, and the cost of same shall be borne: (i) if such action that is not
expressly permitted by this Agreement would be of a material benefit to or
otherwise in the best interests of the Certificateholders as a whole, by the
Trust and shall be paid by the Certificate Administrator 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 Certificate Administrator, if such tax arises out
of or results from a breach by the Certificate Administrator 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 Certificate
Administrator 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, none of the REMIC
Administrator, the Master Servicer, the Special Servicer, the Trustee or the
Certificate Administrator shall 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, the Trustee or the Certificate Administrator 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 the 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, the Trustee or
the Certificate Administrator 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, the
Trustee and the Certificate Administrator 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, the Trustee and the
Certificate Administrator 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 Certificate Administrator and the REMIC
Administrator are not the same Person, the Certificate Administrator 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 Certificate Administrator 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 Certificate Administrator, 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.
The parties intend that the segregated pool of assets consisting of
the Excess Interest and the Excess Interest Distribution Account 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,
the Certificate Administrator shall file or cause to be filed annually with the
IRS together with IRS Form 1041 (or, in the event the Grantor Trust is a WHFIT,
information will be provided on Form 1099) or such other form as may be
applicable and shall furnish or cause to be furnished annually, 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. Under no circumstances shall the
Trustee, the Certificate Administrator, the Master Servicer or the Special
Servicer have the power to vary the investment of the Holders of the Class V
Certificates in the Grantor Trust to take advantage of variations in the market
rate of interest to improve their rate of return. Notwithstanding the foregoing,
unless otherwise notified by the beneficial owner of a Class V Certificate that
such Certificate is registered in the name of a nominee or other middleman on
behalf of such beneficial owner, the Certificate Administrator shall not treat
the Grantor Trust as a WHFIT.
ARTICLE XI
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 11.01 Intent of the Parties; Reasonableness.__The parties
hereto acknowledge and agree that the purpose of Article XI of this Agreement is
to facilitate compliance by the Depositor with the provisions of Regulation AB
and the related rules and regulations of the Commission. Except with respect to
Section 11.09 and Section 11.11, the Depositor or the Master Servicer shall not
exercise their right to request delivery of information or other performance
under these provisions other than in good faith, or for purposes other than
compliance with the Securities Act, the Exchange Act, the Xxxxxxxx-Xxxxx Act
and, in each case, the rules and regulations of the Commission thereunder. The
parties hereto acknowledge that interpretations of the requirements of
Regulation AB may change over time due to interpretive guidance provided by the
Commission or its staff, and agree to comply with reasonable requests made by
the Depositor or the Master Servicer in good faith for delivery of information
under these provisions on the basis of evolving interpretations of Regulation
AB. In connection with the Banc of America Commercial Mortgage Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-5, each of the Master Servicer,
the Special Servicer, the Trustee and the Certificate Administrator shall
cooperate fully with the Depositor and the Master Servicer, as applicable, to
deliver to the Depositor or the Certificate Administrator, 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
Certificate Administrator, 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, the Trustee and the Certificate
Administrator, 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 Certificate Administrator, as applicable, to satisfy any
related filing requirements.
Section 11.02 Succession; Subcontractors.
(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, the Trustee and the Certificate Administrator (each of the Master
Servicer, the Special Servicer and the Trustee, the Certificate Administrator
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 Certificate
Administrator 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 or the
Certificate Administrator, as applicable, under this Agreement by any Person (i)
into which the Trustee or the Certificate Administrator, as applicable, may be
merged or consolidated, or (ii) which may be appointed as a successor to the
Trustee or the Certificate Administrator, as applicable, the Trustee or the
Certificate Administrator, as applicable, 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 or the Certificate Administrator, as applicable, 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 or the Certificate Administrator, 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.
Section 11.03 Filing Obligations. (a) The Master Servicer, the
Special Servicer, the Trustee and the Certificate Administrator shall reasonably
cooperate with the Depositor in connection with the satisfaction of the Trust's
reporting requirements under the Exchange Act. The Certificate Administrator
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 Certificate Administrator shall file (via the Commission's Electronic Data
Gathering and Retrieval System) such Forms executed by the Depositor.(b) In the
event that all or any required portion of any Form 8-K, 10-D or 10-K required to
be filed by this Agreement was either not delivered to the Certificate
Administrator or delivered to it after the delivery deadlines set forth in this
Agreement, the Certificate Administrator 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, the Trustee and the Certificate
Administrator 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 Certificate Administrator 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 Certificate Administrator 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 Certificate Administrator 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 Certificate
Administrator 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 Certificate Administrator 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 Certificate Administrator'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
Certificate Administrator 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 Certificate Administrator 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 Certificate Administrator and approved by
the Depositor, and the Certificate Administrator 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
Certificate Administrator 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 Certificate
Administrator 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 Certificate Administrator 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 Certificate Administrator 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 Certificate Administrator 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 Certificate Administrator
shall forward electronically a copy of the Form 10-D to the Depositor for review
and approval. No later than two Business Days prior to the 15th calendar day
after the related Distribution Date, a duly authorized representative of the
Depositor shall sign the Form 10-D and return an electronic or fax copy of such
signed Form 10-D (with an original executed hard copy to follow by overnight
mail) to the Certificate Administrator. If a Form 10-D cannot be filed on time
or if a previously filed Form 10-D needs to be amended, the Certificate
Administrator will follow the procedures set forth in Section 11.03(b). Promptly
after filing with the Commission, the Certificate Administrator will make
available on its internet website a final executed copy of each Form 10-D
prepared and filed by the Certificate Administrator. The signing party at the
Depositor can be contacted at: Xxxxxxx X. Xxxxx, Banc of America Securities LLC,
000 Xxxxx Xxxxx Xxxxxx, XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000,
Telephone No. (000) 000-0000, and Xxxx X. Xxxxxxx, Esq., Bank of America
Corporation, 000 Xxxxx Xxxxx Xxxxxx, 30th Floor, NC1-002-29-01, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000, Telephone No. (000) 000-0000. The parties hereto acknowledge
that the performance by the Certificate Administrator 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 Certificate
Administrator 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
Certificate Administrator'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 Certificate Administrator 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
Certificate Administrator shall be entitled to rely on such representations in
preparing, executing and/or filing any Form 10-D.
Section 11.05 Form 10-K Filings.(a) Within 90 days after the end of
each fiscal year of the Trust or such earlier date as may be required by the
Exchange Act (the "10-K Filing Deadline"), commencing in March 2008, the
Certificate Administrator 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 Certificate Administrator 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, the Trustee and the
Certificate Administrator, as described under Section 11.09;
(ii) (A) the annual reports on assessment of compliance with
servicing criteria for the Trustee, the Certificate Administrator, 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, the Trustee or the Certificate Administrator, 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 Certificate Administrator, 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, the
Trustee or the Certificate Administrator,, 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 Certificate Administrator, and the Certificate Administrator 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 Certificate Administrator 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
Certificate Administrator 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 Certificate Administrator 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 Certificate Administrator shall, at any
time prior to filing the related Form 10-K, provide prompt notice to the
Depositor to the extent that the Certificate Administrator 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 Certificate
Administrator 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 Certificate
Administrator in connection with including any Additional Form 10-K Disclosure
on Form 10-K pursuant to this paragraph.
(b) After preparing the Form 10-K, the Certificate Administrator
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 Certificate Administrator. If a Form 10-K cannot be filed on time
or if a previously filed Form 10-K needs to be amended, the Certificate
Administrator will follow the procedures set forth in Section 11.03(b). Promptly
after filing with the Commission, the Certificate Administrator will make
available on its internet website a final executed copy of each Form 10-K
prepared and filed by the Certificate Administrator. The signing party at the
Depositor can be contacted at: Xxxxxxx X. Xxxxx, Banc of America Securities LLC,
000 Xxxxx Xxxxx Xxxxxx, XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000,
Telephone No. (000) 000-0000, and Xxxx X. Xxxxxxx, Esq., Bank of America
Corporation, 000 Xxxxx Xxxxx Xxxxxx, 30th Floor, NC1-002-29-01, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000, Telephone No. (000) 000-0000. The parties hereto acknowledge
that the performance by the Certificate Administrator 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 Certificate
Administrator 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
Certificate Administrator'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 Certificate Administrator 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 Certificate Administrator 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, the Trustee and the Certificate Administrator shall, and the Master
Servicer, the Special Servicer, the Trustee and the Certificate Administrator
shall use commercially reasonable efforts (including enforcement as such term is
described in Section 3.22(c)) to cause each Servicing Function Participant with
which it has entered into a servicing relationship with respect to the Mortgage
Loans to, provide to the Person who signs the Xxxxxxxx-Xxxxx Certification (the
"Certifying Person") a certification in the form attached hereto as Exhibit L,
on which the Certifying Person, the entity for which the Certifying Person acts
as an officer (if the Certifying Person is an individual), and such entity's
officers, directors and Affiliates (collectively with the Certifying Person,
"Certification Parties") can reasonably rely. In addition, in the event that the
Companion Loan related to a Serviced Whole Loan is deposited into a commercial
mortgage securitization, each Reporting Servicer shall provide to the Person who
signs the Xxxxxxxx-Xxxxx Certification with respect to the securitization of the
Companion Loan related to a Serviced Whole Loan a certification in the form
attached hereto as Exhibit K (a "Performance Certification") (which shall
address the matters contained in such certification, but solely with respect to
the related Companion Loan) on which such Person, the entity for which the
Person acts as an officer (if the Person is an individual), and such entity's
officers, directors and Affiliates can reasonably rely. With respect to any
Non-Serviced Loan serviced under a Non-Serviced Loan 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, the Certificate Administrator 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, the
Certificate Administrator 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, the Certificate Administrator 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 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 Certificate Administrator 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 Certificate
Administrator and approved by the Depositor, and the Certificate Administrator
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 Certificate Administrator 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
Certificate Administrator 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 Certificate Administrator 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
Certificate Administrator 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 Certificate
Administrator 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 Certificate Administrator 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 Certificate Administrator 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 Certificate Administrator. If a Form 8-K cannot be filed on time or
if a previously filed Form 8-K needs to be amended, the Certificate
Administrator will follow the procedures set forth in this Section 11.07.
Promptly after filing with the Commission, the Certificate Administrator will,
make available on its internet website a final executed copy of each Form 8-K
prepared by the Certificate Administrator. The signing party at the Depositor
can be contacted at Xxxxxxx X. Xxxxx, Banc of America Securities LLC, 000 Xxxxx
Xxxxx Xxxxxx, XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Telephone No.
(000) 000-0000, and Xxxx X. Xxxxxxx, Esq., Bank of America Corporation, 000
Xxxxx Xxxxx Xxxxxx, 30th Floor, NC1-002-29-01, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000,
Telephone No. (000) 000-0000. The parties hereto acknowledge that the
performance by the Certificate Administrator 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 Certificate Administrator 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 Certificate Administrator'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 Certificate
Administrator is able to do so under applicable law, the Certificate
Administrator 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 Certificate Administrator 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
Certificate Administrator 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 Certificate Administrator 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 Certificate Administrator, 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 Certificate Administrator on or before March 15
of each year, commencing in March 2008, an Officer's Certificate stating, as to
the Certifying Servicer, that (A) a review of such Certifying Servicer's
activities during the preceding calendar year or portion thereof and of such
Certifying Servicer's performance under this Agreement, or the applicable
sub-servicing agreement or primary servicing agreement in the case of an
Additional Servicer, has been made under such officer's supervision and (B) to
the best of such officer's knowledge, based on such review, such Certifying
Servicer has fulfilled all its obligations under this Agreement, or the
applicable sub-servicing agreement or primary servicing agreement in the case of
an Additional Servicer, in all material respects throughout such year or portion
thereof, or, if there has been a failure to fulfill any such obligation in any
material respect, specifying each such failure known to such officer and the
nature and status thereof. Promptly after receipt of each such Officer's
Certificate, the Depositor shall review each such Officer's Certificate and, if
applicable, consult with such Certifying Servicer as to the nature of any
failures by such Certifying Servicer, or any related Additional Servicer with
which such Certifying Servicer has entered into a servicing relationship with
respect to the Mortgage Loans in the fulfillment of any of such Certifying
Servicer's obligations hereunder or under the applicable Sub-Servicing Agreement
or primary servicing agreement. The obligations of each Certifying Servicer
under this Section 11.09 apply to the extent that such Certifying Servicer
serviced a Mortgage Loan during the applicable period, whether or not the Master
Servicer, the Special Servicer or Additional Servicer is acting as a Certifying
Servicer at the time such Officer's Certificate is required to be delivered. In
the event the Master Servicer, the Special Servicer, the Trustee or the
Certificate Administrator is terminated or resigns pursuant to the terms of this
Agreement, such party shall provide, and the Master Servicer shall use its
reasonable efforts to cause any Certifying Servicer that resigns or is
terminated under any applicable servicing agreement to provide, an annual
statement of compliance pursuant to this Section 11.09 with respect to the
period of time that the Master Servicer, the Special Servicer, the Trustee or
the Certificate Administrator was subject to this Agreement or the period of
time that the Certifying Servicer was subject to such other servicing agreement.
No Certifying Servicer shall be required to cause the delivery of any such
Officer's Certificate until April 15 in any given year so long as it has
received written confirmation from the Depositor that a Report on Form 10-K is
not required to be filed in respect of the Trust for the preceding calendar
year.
Section 11.10 Annual Reports on Assessment of Compliance with
Servicing Criteria.(a) On or before March 15 of each year, commencing in March
2008, the Master Servicer, the Special Servicer, the Trustee and the Certificate
Administrator, 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
Certificate Administrator 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. (b) 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 Certificate Administrator 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.
(c) On the Closing Date, the Master Servicer, the Special Servicer,
the Trustee and the Certificate Administrator shall furnish to the Depositor and
the Certificate Administrator 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,
the Trustee or the Certificate Administrator has entered into a servicing
relationship).
(d) No later than the end of each fiscal year for the Trust, the
Master Servicer and the Special Servicer shall notify the Certificate
Administrator and the Depositor and the other parties to this Agreement as to
the name of each Servicing Function Participant utilized by it, and the
Certificate Administrator 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, the Trustee and the Certificate Administrator
submit their assessments pursuant to Section 11.10(a), the Master Servicer, the
Special Servicer, the Trustee and the Certificate Administrator, 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, the Trustee and the Certificate
Administrator, each at its own expense, shall cause, and the Master Servicer,
the Special Servicer, the Trustee and the Certificate Administrator 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, the Certificate
Administrator 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 Certificate Administrator 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, the Certificate Administrator or any Servicing
Function Participant, (i) the Depositor shall review the report and, if
applicable, consult with the Master Servicer, the Special Servicer, the Trustee
or the Certificate Administrator as to the nature of any defaults by the Master
Servicer, the Special Servicer, the Trustee, the Certificate Administrator 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 Certificate Administrator's or the applicable Servicing Function
Participants' obligations hereunder or under the applicable sub-servicing or
primary servicing agreement, and (ii) the Certificate Administrator shall
confirm that each accountants' attestation report submitted pursuant to this
Section relates to an assessment of compliance meeting the requirements of
Section 11.10 and notify the Depositor of any exceptions.
Section 11.12 Indemnification.
Each of the Master Servicer, the Special Servicer, the Trustee and
the Certificate Administrator 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, the Trustee or the
Certificate Administrator, 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, the Certificate Administrator, 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 Certificate
Administrator 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 Certificate Administrator 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 Certificate Administrator will follow
the procedures set forth in this Article XI.
With respect to any notice required to be delivered by the
Certificate Administrator to the Depositor pursuant to Article XI, the
Certificate Administrator may deliver such notice, notwithstanding any contrary
provision in Section 12.05 via facsimile to (000) 000-0000, via email to
xxxxxxx.x.xxxxx@xxxxxxxxxxxxx.xxx or telephonically by calling Xxxxxxx Xxxxx at
(000) 000-0000.
Section 11.14 Amendments.
This Article XI (other than with respect to the reports and
certifications set forth in Section 11.09 and Section 11.11) may be amended by
the parties hereto pursuant to Section 12.01 for purposes of complying with
Regulation AB and the Xxxxxxxx-Xxxxx Act and/or to conform to standards
developed within the commercial mortgage-backed securities market without any
Opinions of Counsel, Officer's Certificates, Rating Agency confirmations or the
consent of any Certificateholder, notwithstanding anything to the contrary
contained in this Agreement.
Section 11.15 Certain Matters Relating to the Securitization of
Companion Loans.
(a) Notwithstanding any other provision herein to the contrary,
including, without limitation, any time deadlines for delivery set forth in this
Article XI, in connection with the requirements contained in this Article XI
that provide for the delivery of information and other items to, and the
cooperation with, the depositor and trustee of any securitization subject to
Regulation AB involving any Companion Loan (a "Regulation AB Companion Loan
Securitization"), no party hereunder shall be obligated to provide any such
items to or cooperate with such depositor or trustee (i) unless it is required
to deliver corresponding information and other items with respect to such
Regulation AB Companion Loan Securitization, (ii) until the depositor or the
trustee of such Regulation AB Companion Loan Securitization has provided each
party hereto with not less than 30 days written notice (which shall only be
required to be delivered once) certifying that such Regulation AB Companion Loan
Securitization is subject to Regulation AB and is subject to Exchange Act
reporting, and (iii) specifying in reasonable detail the information and other
items requested to be delivered; provided that if Exchange Act reporting is
being requested, such depositor or trustee is only required to provide a single
written notice to such effect. Any reasonable cost and expense of the Master
Servicer, Special Servicer, the Trustee and the Certificate Administrator 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 the trustee of
such Regulation AB Companion Loan Securitization prior to providing any of the
reports or other information required to be delivered under this Article XI in
connection therewith. Upon such confirmation, the parties shall comply with the
time deadlines for delivery set forth in this Article XI with respect to such
Regulation AB Companion Loan Securitization. The parties hereunder shall also
have the right to require that such depositor provide them with the contact
details of the depositor, the trustee and any other parties to the Non-Serviced
Loan 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
11.15(a) (and the Master Servicer and the Special Servicer, the Trustee and the
Certificate Administrator shall use commercially reasonable efforts to cause any
sub-servicer appointed with respect to any Companion Loan to permit), permit a
holder of any Companion Loan to use such party's description contained in the
Prospectus Supplement (including the annexes thereto) (updated as appropriate by
the Master Servicer or the Special Servicer, as applicable) for inclusion in the
disclosure materials relating to any securitization of any Companion Loan.
(c) The Master Servicer and the Special Servicer, upon reasonable
prior written request given in accordance with the terms of Section 11.15(a),
shall each timely provide (to the extent the reasonable cost thereof is paid or
caused to be paid by the requesting party) to the depositor and any underwriters
with respect to the securitization of any Companion Loan such opinion(s) of
counsel, certifications and/or indemnification agreement(s) with respect to the
updated description referred in Section 11.15(a) with respect to such party,
substantially identical to those, if any, delivered by the Master Servicer or
the Special Servicer, as the case may be, or their respective counsel, in
connection with the information concerning such party in the Prospectus
Supplement and/or any other disclosure materials relating to this transaction
(updated as deemed appropriate by the Master Servicer or the Special Servicer,
or their respective legal counsel, as the case may be).
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment.
(a) This Agreement may be amended from time to time by the mutual
agreement of the parties hereto, without the consent of any of the
Certificateholders or any Companion Loan Holder, (i) to cure any ambiguity, (ii)
to correct, modify or supplement any provision herein that may be defective or
may be inconsistent with any other provision herein, (iii) to add any other
provisions with respect to matters or questions arising hereunder that shall not
be inconsistent with the provisions hereof, (iv) to relax or eliminate any
requirement hereunder imposed by the REMIC Provisions if the REMIC Provisions
are amended or clarified such that any such requirement may be relaxed or
eliminated; (v) if such amendment, as evidenced by an Opinion of Counsel
delivered to the Trustee and the Certificate Administrator and the REMIC
Administrator, is reasonably necessary to comply with any requirements imposed
by the Code or any successor or amendatory statute or any temporary or final
regulation, revenue ruling, revenue procedure or other written official
announcement or interpretation relating to federal income tax laws or any such
proposed action that, if made effective, would apply retroactively to REMIC I or
REMIC II at least from the effective date of such amendment, or would be
necessary to avoid the occurrence of a prohibited transaction or to reduce the
incidence of any tax that would arise from any actions taken with respect to the
operation of REMIC I or REMIC II; (vi) to modify, add to or eliminate any
provisions of Section 5.02(d)(i), (ii) or (iii); or (vii) for any other purpose;
provided that such amendment (other than any amendment for the specific purposes
described in clauses (v) and (vi) of this Section 12.01(a)) shall not, as
evidenced by an Opinion of Counsel obtained by or delivered to the Trustee and
the Certificate Administrator, 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 Mortgage Loan Seller without
the Mortgage Loan Seller's written consent; provided, further, such amendment
shall not adversely affect in any material respect the rights and obligations of
the related Companion Loan Holder without such Companion Loan Holder's written
consent; and provided, further, such amendment (other than any amendment for any
of the specific purposes described in clauses (i) through (vi) of this Section
12.01(a)) shall not result in a downgrade, qualification (if applicable) or
withdrawal of any rating then assigned to any Class of Certificates or Companion
Loan Securities by any Rating Agency (as evidenced by written confirmation to
such effect from each Rating Agency obtained by or delivered to the Trustee and
the Certificate Administrator).
(b) This Agreement may also be amended from time to time by the
mutual agreement of the parties hereto, with the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights allocated to the
affected Classes, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or of modifying in
any manner the rights of the Holders of Certificates or any Companion Loan
Holder; provided, however, no such amendment shall (i) reduce in any manner the
amount of, or delay the timing of, payments received or advanced on the Mortgage
Loans and any REO Properties that are required to be distributed on any
Certificate without the written consent of the Holder of such Certificate, (ii)
adversely affect in any material respect the interests of the Holders of any
Class of Certificates in a manner other than as described in clause (b)(i) of
this Section 12.01(b) without the written consent of the Holders of all
Certificates of such Class, (iii) change the definition of the Servicing
Standard, without the written consent of the Holders of all Certificates
outstanding, or (iv) modify the provisions of this Section 12.01 without the
written consent of the Holders of all Certificates then outstanding.
Notwithstanding any other provision of this Agreement, for purposes of the
giving or withholding of consents pursuant to this Section 12.01, Certificates
registered in the name of the Depositor, the Master Servicer, the Special
Servicer or any of their respective Affiliates shall be entitled to the same
Voting Rights with respect to matters described above as they would if any other
Person held such Certificates. For purposes of this Section 12.01(b), a Class of
Certificates is an "affected Class" if and only if it would, as the result of
any such amendment, experience any of the effects described in clauses (i), (ii)
and (iii) of this Section 12.01(b).
(c) At the direction of the Holders of Certificates entitled to 100%
of the Voting Rights allocated to the affected Classes, and with the agreement
of all of the parties hereto (none of which shall withhold its agreement unless
its obligations hereunder would be materially increased), this Agreement shall
be amended for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Holders of Certificates, including without limitation,
(i) to cause such Classes to be restructured, (ii) to create in connection with
any restructuring one or more new classes of Certificates, which may include,
without limitation, one or more classes of Certificates entitled to payments of
principal on a priority basis from collections in respect of some or all of the
Mortgage Loans, (iii) to make in connection with any such restructuring one or
more additional REMIC elections with respect to the Trust Fund, (iv) to provide
for the book-entry registration of any such existing or newly created classes of
Certificates, and (v) to provide for any Holders of any Classes of
Non-Registered Certificates remaining as such after giving effect to such
amendment to receive or have the right to request to receive any statements,
reports or other information that the Holders of the Class 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 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 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.
(d) Notwithstanding any contrary provision of this Agreement, none
of the Trustee, the Certificate Administrator or the REMIC Administrator shall
consent to any amendment to this Agreement unless it shall first have obtained
or been furnished with an Opinion of Counsel to the effect that such amendment
or the exercise of any power granted to any party hereto in accordance with such
amendment will not result in the imposition of a tax on REMIC I or REMIC II
pursuant to the REMIC Provisions or cause REMIC I or REMIC II to fail to qualify
as a REMIC at any time that any Certificates are outstanding or either Grantor
Trust to fail to qualify as a grantor trust at any time that any Certificates
are outstanding.
(e) Promptly after the execution of any such amendment, the
Certificate Administrator 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 Certificate Administrator may prescribe;
provided that such consents shall be in writing.
(g) Each of the Trustee and the Certificate Administrator may but
neither shall 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 Section 12.01(d) shall be borne by the Person seeking the
related amendment, except that if the Trustee or the Certificate Administrator
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 Section 12.01(d) shall be
payable out of the Distribution Account.
Section 12.02 Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Master Servicer at the expense of the Trust on direction by the
Trustee, but only (i) upon direction accompanied by an Opinion of Counsel (the
reasonable cost of which may be paid out of the Distribution Account) to the
effect that such recordation materially and beneficially affects the interests
of the Certificateholders and (ii) upon consent of the Directing
Certificateholder. It is acknowledged that the Trustee has no obligation to
monitor whether such recordation in necessary under this Section 12.02.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
Section 12.03 Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder or any
Companion Loan Holder shall not operate to terminate this Agreement or the
Trust, nor entitle such Certificateholder's or Companion Loan Holder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
(b) No Certificateholder or any Companion Loan Holder shall have any
right to vote (except as expressly provided for herein) or in any manner
otherwise control the operation and management of the Trust Fund, or the
obligations of the parties hereto, nor shall anything herein set forth, or
contained in the terms of the Certificates, be construed so as to constitute the
Certificateholders and/or any Companion Loan Holder from time to time as
partners or members of an association; nor shall any Certificateholder or
Companion Loan Holder be under any liability to any third party by reason of any
action taken by the parties to this Agreement pursuant to any provision hereof.
(c) No Certificateholder or Companion Loan Holder shall have any
right by virtue of any provision of this Agreement to institute any suit, action
or proceeding in equity or at law upon or under or with respect to this
Agreement or any Loan, unless, with respect to any suit, action or proceeding
upon or under or with respect to this Agreement, such Holder or any Companion
Loan Holder previously shall have given to the Trustee a written notice of
default hereunder, and of the continuance thereof, as hereinbefore provided, and
(except in the case of a default by the Trustee) the Holders of Certificates
entitled to at least 25% of the Voting Rights shall have made written request
upon the Trustee to institute such action, suit or proceeding in its own name as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for 60 days after its receipt of
such notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding. It is understood and intended,
and expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatsoever by virtue of any provision of this
Agreement to affect, disturb or prejudice the rights of the Holders of any other
of such Certificates, or to obtain or seek to obtain priority over or preference
to any other such Holder, which priority or preference is not otherwise provided
for herein, or to enforce any right under this Agreement, except in the manner
herein provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of this
Section 12.03(c), each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
Section 12.04 Governing Law.
This Agreement and the Certificates shall be construed in accordance
with the internal laws of the State of New York applicable to agreements made
and to be performed in said State, and the obligations, rights and remedies of
the parties hereunder shall be determined in accordance with such laws.
Section 12.05 Notices.
Any communications provided for or permitted hereunder shall be in
writing and, unless otherwise expressly provided herein, shall be deemed to have
been duly given when delivered to:
(i) in the case of Banc of America Commercial Mortgage Inc., 000
Xxxxx Xxxxx Xxxxxx, XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000,
Attention: Xxxxxxx Xxxxx, telecopy number: (000) 000-0000 (with a copy to
Xxxx Xxxxxxx, Esq., Assistant General Counsel, Bank of America
Corporation, Bank of America Corporate Center, 000 Xxxxx Xxxxx Xxxxxx,
30th Floor, NC1-002-29-01, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, telecopy
number: (000) 000-0000 and with a copy to: Xxxxx X. XxXxxx, Esq.,
Cadwalader, Xxxxxxxxxx & Xxxx LLP, 000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 28202);
(ii) in the case of the Master Servicer, Bank of America, National
Association, Capital Markets Servicing Group, NC1-026-06-01, 000 Xxxx
Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention:
Servicing Manager, telecopy number: (000) 000-0000, Reference: Banc of
America Commercial Mortgage Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-5, and with a copy to: Xxxxx X. XxXxxx, Esq.,
Cadwalader, Xxxxxxxxxx & Xxxx LLP, 000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000;
(iii) in the case of the Special Servicer, Centerline Servicing
Inc., 0000 Xxxxx X'Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000,
Attention: Xxxxxxx Xxxxxx, telecopy number: (000) 000-0000;
(iv) in the case of the Trustee, 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 2007-5, telecopy number: (410)
716-2380;
(v) in the case of the Certificate Administrator and REMIC
Administrator, LaSalle Bank National Association, 000 Xxxxx XxXxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Global Securities
and Trust Services, Banc of America Commercial Mortgage Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-5, telecopy number: (312)
904-2084;
(vi) in the case of the Rating Agencies: (A) Fitch, Inc., Xxx Xxxxx
Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Commercial
Mortgage-Backed Securities Surveillance, telecopy number: (000) 000-0000
and (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;
(vii) in the case of the initial Directing Certificateholder,
Centerline REIT Inc., Centerline REIT Inc., 0000 Xxxxx X'Xxxxxx Xxxxxxxxx,
Xxxxx 000, Xxxxxx, Xxxxx 00000, Attention: Xxxx Xxxxx, telecopy number
(000) 000-0000; with a copy to: Xxx Xxxxx, 0000 Xxxxx X'Xxxxxx Xxxxxxxxx,
Xxxxx 000, Xxxxxx, Xxxxx 00000;
(viii) in the case of the Xxxxx Xxxxxx Building Controlling Holder,
CBRE Realty Finance Holdings IV, LLC c/o CBRE Realty Finance, Inc., City
Place I - 37th Floor, 185 Asylum Street, Hartford, Connecticut, Attention:
J. Xxxxx Xxxxx, telecopy number: (000) 000-0000;
(ix) in the case of the Green Oak Village Place Controlling Holder,
Bank of America, National Association, 000 Xxxxx Xxxxx Xxxxxx,
XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxxxxxx X.
Xxxxx, telecopy number: (000) 000-0000 (with copies to Xxxx X. Xxxxxxx,
Esq., Assistant General Counsel, at Bank of America Corporate Center, 000
Xxxxx Xxxxx Xxxxxx, 30th Floor, NC1-002-29-01, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000 and to Xxxxx X. XxXxxx, Esq., Cadwalader, Xxxxxxxxxx & Xxxx LLP, 227
West Trade Street, Suite 2400, Charlotte, North Carolina 28202);
(x) in the case of the West Hartford Portfolio Controlling Holder,
RCG Longview, 0 Xxxx Xxxxx-Xxxxx 000, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxx Xxxxx, telecopy 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.
Each Companion Loan Holder (and any designees thereof acting on behalf of or
exercising the rights of such Companion Loan Holder) 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 Certificate Administrator, the Special
Servicer and the Master Servicer acknowledges that each of the trustee, master
servicer and special servicer of a Securitized Companion Loan Securitization is
an intended third-party beneficiary under this Agreement, subject to the terms
of this Agreement, (i) with respect to Section 3.05(f) and (ii) any provisions
herein relating to (1) the reimbursement of any nonrecoverable advances made
with respect to the related Mortgage Loan by such Persons, (2) the
indemnification of the trustee, master servicer and special servicer of a
Securitized Companion Loan Securitization pursuant to Section 6.03 against any
claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments and any other costs, liabilities, fees and expenses incurred in
connection with the Securitized Companion Loan Servicing Agreement and this
Agreement that relate solely to its servicing of the related Serviced Whole Loan
and any related reimbursement provisions and (3) the provisions set forth in
Section 4.03(f) regarding advancing coordination.
Section 12.08 Article and Section Headings.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
Section 12.09 Notices to and from Rating Agencies.
(a) The Trustee (or the Certificate Administrator with respect to
items (iv) and (v) below) 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 REMIC II Distribution Account, the
Excess Liquidation Proceeds Account or the Excess Interest Distribution
Account;
(v) the final payment to any Class of Certificateholders; and
(vi) the repurchase of any Mortgage Loan by the 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 or the Certificate
Administrator and the appointment of a successor; and
(ii) any change in the location of the Certificate Account.
(c) The Trustee, the Certificate Administrator, 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 Certificate Administrator, 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 Certificate Administrator, 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 Certificate Administrator shall promptly furnish each Rating
Agency on a monthly basis, to the extent not made available on the Certificate
Administrator's Website, copies of the statements to the Holders of the REMIC II
Regular Certificates required by the first paragraph of Section 4.02(a).
(f) To the extent reasonably possible, all information and reports
delivered or made available to the Rating Agencies, any Companion Loan Holder,
any Controlling Holder or a Holder of a Non-Registered Certificate (except a
Class V, Class R-I or Class R-II Certificate) (if requested by such Holder), by
any of the Trustee, the Certificate Administrator, 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 and/or the
Certificate Administrator, 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 request.
(b) For the avoidance of doubt, it is noted that to the extent that
Rating Agency, any Companion Loan Holder, any Controlling Holder, as applicable,
or any Holder of a Non-Registered Certificate (except a Class 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.
Section 12.11 Insolvency.
The Master Servicer, Special Servicer, Depositor, the Trustee and
the Certificate Administrator shall each notify the Depositor, the Trustee and
the Certificate Administrator of any of the events enumerated in Item 1.03 of
Form 8-K with respect to any of the Master Servicer, Special Servicer,
Depositor, the Trustee and the Certificate Administrator as least two Business
Days prior to the effective date thereof and shall provide the Depositor and the
Certificate Administrator with all information required by the Depositor to
comply with its reporting obligation under Item 1.03 of Form 8-K not later than
the effective date of any such event.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers or representatives thereunto duly
authorized, in each case as of the day and year first above written.
BANC OF AMERICA COMMERCIAL MORTGAGE
INC., as Depositor,
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
BANK OF AMERICA, NATIONAL ASSOCIATION,
as Master Servicer,
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Principal
CENTERLINE SERVICING INC., as Special
Servicer,
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: President and COO
XXXXX FARGO BANK, N.A., as Trustee,
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION, as
Certificate Administrator and REMIC
Administrator,
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Assistant Vice President
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the 28th day of December 2007, before me, a notary public in and
for said State, personally appeared Xxxx X. Xxxxxx known to me to be a Vice
President of BANC OF AMERICA COMMERCIAL MORTGAGE INC. one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such entity, and acknowledged to me that such person
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxxx X. Xxxxxxx
---------------------------------
Xxxxxxxx X. Xxxxxxx
Notary Public
[Notarial Seal]
My commission expires:
February 4, 0000
XXXXX XX XXXXX XXXXXXXX )
) ss.:
COUNTY OF MECKLENBURG )
On the 28th day of December 2007, before me, a notary public in and
for said State, personally appeared Xxxx X. Xxxxxx known to me to be a Principal
of BANC OF AMERICA COMMERCIAL MORTGAGE INC. one of the entities that executed
the within instrument, and also known to me to be the person who executed it on
behalf of such entity, and acknowledged to me that such person executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxxx X. Xxxxxxx
---------------------------------
Xxxxxxxx X. Xxxxxxx
Notary Public
[Notarial Seal]
My commission expires:
February 4, 0000
XXXXX XX XXXXX )
) ss.:
COUNTY OF DALLAS )
On the 28th day of December 2007, before me, a notary public in and
for said State, personally appeared Xxxx Xxxxx, known to me to be the President
and COO of CENTERLINE SERVICING INC., one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such entity, and acknowledged to me that such person
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx Xxxxxx
---------------------------------
Notary Public
[Notarial Seal]
My commission expires:
February 14, 0000
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the 28th day of December 2007, before me, a notary public in and
for said State, personally appeared Xxxx X. Xxxxxxx, known to me to be a Vice
President of XXXXX FARGO BANK, N.A. which executed the within instrument, and
also known to me to be the person who executed it on behalf of such entity, and
acknowledged to me that such person executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx X. Xxxxxx
---------------------------------
Notary Public
[SEAL]
My commission expires:
Jan. 3, 0000
XXXXX XX XXXXXXXX )
) ss.:
COUNTY OF XXXX )
On the 28th day of December 2007, before me, a notary public in and
for said State, personally appeared Xxxxxxx Xxxxxxxxx, known to me to be an
Assistant Vice President of LASALLE BANK NATIONAL ASSOCIATION which executed the
within instrument, and also known to me to be the person who executed it on
behalf of such entity, and acknowledged to me that such person executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx Xxxxxxxx
---------------------------------
Notary Public
[Notarial Seal]
My commission expires:
08/23/2009
Exhibit A-1
Form of Class A-1 Certificate
CLASS A-1 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-5
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
5.1750% Certificate as of the Issue Date:
$25,000,000
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: December 1, 2007 Class A-1 Certificates as of the Issue
Date: $25,000,000
Cut-off Date: Initial Pool Balance: $1,858,595,584
December 1, 2007
Issue Date:
December 28, 2007
First Distribution Date:
January 10, 2008
Initial Master Servicer: Initial Trustee:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer: Initial Certificate Administrator and
Centerline Servicing Inc. REMIC Administrator: LaSalle Bank
National Association
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 CERTIFICATE ADMINISTRATOR, 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, CERTIFICATE
ADMINISTRATOR, 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 CERTIFICATE ADMINISTRATOR 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, the Trustee, the Certificate Administrator 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 Certificate Administrator 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 Certificate
Administrator 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 Certificate Administrator 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 Certificate Administrator 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 Certificate Administrator 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
Certificate Administrator, 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
Certificate Administrator, 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 Certificate Administrator 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, the
Certificate Administrator and REMIC Administrator thereunder and the rights of
the Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Administrator 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 Certificate Administrator has caused this Certificate
to be duly executed.
LaSalle Bank National Association,
as Certificate Administrator
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1 Certificates referred to in the within mentioned
Agreement.
Dated: December 28, 2007
LaSalle Bank National Association,
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 2007-5
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
5.4340% Certificate as of the Issue Date:
$77,000,000
Date of Pooling and Servicing Class Principal Balance of all the
Agreement:December 1, 2007 Class A-2 Certificates as of the Issue
Date: $77,000,000
Cut-off Date: Initial Pool Balance: $1,858,595,584
December 1, 2007
Issue Date:
December 28, 2007
First Distribution Date:
January 10, 2008
Initial Master Servicer: Initial Trustee:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer: Initial Certificate Administrator and
Centerline Servicing Inc. REMIC Administrator: LaSalle Bank
National Association
Certificate No.: A-2-[1] CUSIP No.: [________]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE CERTIFICATE ADMINISTRATOR, 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, CERTIFICATE
ADMINISTRATOR, 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 CERTIFICATE ADMINISTRATOR 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, the Trustee, the Certificate Administrator 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 Certificate Administrator 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 Certificate
Administrator 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 Certificate Administrator 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 Certificate Administrator 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 Certificate Administrator 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
Certificate Administrator, 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
Certificate Administrator, 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 Certificate Administrator 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, the
Certificate Administrator and REMIC Administrator thereunder and the rights of
the Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Administrator 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 Certificate Administrator has caused this Certificate
to be duly executed.
LaSalle Bank National Association,
as Certificate Administrator
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Certificates referred to in the within mentioned
Agreement.
Dated: December 28, 2007
LaSalle Bank National Association,
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-3 Certificate
CLASS A-3 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-5
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
5.6200% Certificate as of the Issue Date:
$281,000,000
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class A-3 Certificates as of the Issue
December 1, 2007 Date:
$281,000,000
Cut-off Date: Initial Pool Balance: $1,858,595,584
December 1, 2007
Issue Date:
December 28, 2007
First Distribution Date:
January 10, 2008
Initial Master Servicer: Initial Trustee:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer: Initial Certificate Administrator and
Centerline Servicing Inc. REMIC Administrator: LaSalle Bank
National Association
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 CERTIFICATE ADMINISTRATOR, 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, CERTIFICATE
ADMINISTRATOR, 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 CERTIFICATE ADMINISTRATOR 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, the Trustee, the Certificate Administrator 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 Certificate Administrator 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 Certificate
Administrator 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 Certificate Administrator 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 Certificate Administrator 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 Certificate Administrator 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
Certificate Administrator, 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
Certificate Administrator, 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 Certificate Administrator 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, the
Certificate Administrator and REMIC Administrator thereunder and the rights of
the Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Administrator 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 Certificate Administrator has caused this Certificate
to be duly executed.
LaSalle Bank National Association,
as Certificate Administrator
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-3 Certificates referred to in the within mentioned
Agreement.
Dated: December 28, 2007
LaSalle Bank National Association,
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-4
Form of Class A-SB Certificate
CLASS A-SB COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-5
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
5.5870% Certificate as of the Issue Date:
$48,322,000
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class A-SB Certificates as of the
December 1, 2007 Issue Date: $48,322,000
Cut-off Date: Initial Pool Balance: $1,858,595,584
December 1, 2007
Issue Date:
December 28, 2007
First Distribution Date:
January 10, 2008
Initial Master Servicer: Initial Trustee:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer: Initial Certificate Administrator and
Centerline Servicing Inc. REMIC Administrator: LaSalle Bank
National Association
Certificate No.: A-SB-[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 CERTIFICATE ADMINISTRATOR, 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, CERTIFICATE
ADMINISTRATOR, 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 CERTIFICATE ADMINISTRATOR 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, the Trustee, the Certificate Administrator 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 Certificate Administrator 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 Certificate
Administrator 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 Certificate Administrator 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 Certificate Administrator 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 Certificate Administrator 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
Certificate Administrator, 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
Certificate Administrator, 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 Certificate Administrator 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, the
Certificate Administrator and REMIC Administrator thereunder and the rights of
the Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Administrator 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 Certificate Administrator has caused this Certificate
to be duly executed.
LaSalle Bank National Association,
as Certificate Administrator
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-SB Certificates referred to in the within
mentioned Agreement.
Dated: December 28, 2007
LaSalle Bank National Association,
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-4 Certificate
CLASS A-4 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-5
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
5.4920% Certificate as of the Issue Date:
$[500,000,000] $[112,000,000]
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class A-4 Certificates as of the Issue
December 1, 2007 Date: $612,000,000
Cut-off Date: Initial Pool Balance: $1,858,595,584
December 1, 2007
Issue Date:
December 28, 2007
First Distribution Date:
January 10, 2008
Initial Master Servicer: Initial Trustee:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer: Initial Certificate Administrator and
Centerline Servicing Inc. REMIC Administrator: LaSalle Bank
National Association
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 CERTIFICATE ADMINISTRATOR, 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, CERTIFICATE
ADMINISTRATOR, 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 CERTIFICATE ADMINISTRATOR 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, the Trustee, the Certificate Administrator 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 Certificate Administrator 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 Certificate
Administrator 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 Certificate Administrator 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 Certificate Administrator 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 Certificate Administrator 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
Certificate Administrator, 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
Certificate Administrator, 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 Certificate Administrator 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, the
Certificate Administrator and REMIC Administrator thereunder and the rights of
the Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Administrator 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 Certificate Administrator has caused this Certificate
to be duly executed.
LaSalle Bank National Association,
as Certificate Administrator
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-4 Certificates referred to in the within mentioned
Agreement.
Dated: December 28, 2007
LaSalle Bank National Association,
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-1A Certificate
CLASS A-1A COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-5
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
5.3610% Certificate as of the Issue Date:
$257,694,000
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class A-1A Certificates as of the
December 1, 2007 Issue Date: $257,694,000
Cut-off Date: Initial Pool Balance: $1,858,595,584
December 1, 2007
Issue Date:
December 28, 2007
First Distribution Date:
January 10, 2008
Initial Master Servicer: Initial Trustee:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer: Initial Certificate Administrator and
Centerline Servicing Inc. REMIC Administrator: LaSalle Bank
National Association
Certificate No.: A-1A-[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 CERTIFICATE ADMINISTRATOR, 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, CERTIFICATE
ADMINISTRATOR, 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 CERTIFICATE ADMINISTRATOR 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, the Trustee, the Certificate Administrator 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 Certificate Administrator 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 Certificate
Administrator 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 Certificate Administrator 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 Certificate Administrator 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 Certificate Administrator 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
Certificate Administrator, 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
Certificate Administrator, 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 Certificate Administrator 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, the
Certificate Administrator and REMIC Administrator thereunder and the rights of
the Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Administrator 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 Certificate Administrator has caused this Certificate
to be duly executed.
LaSalle Bank National Association,
as Certificate Administrator
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1A Certificates referred to in the within
mentioned Agreement.
Dated: December 28, 2007
LaSalle Bank National Association,
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 XW Certificate
CLASS XW COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-5
[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 Notional Amount of this
Variable Certificate as of the Issue Date:
$[500,000,000] $[500,000,000]
$[500,000,000] $[358,595,583]
Date of Pooling and Servicing Class Notional Amount of all the Class
Agreement: XW Certificates as of the Issue Date:
December 1, 2007 $1,858,595,583
Cut-off Date: Initial Pool Balance: $1,858,595,584
December 1, 2007
Issue Date:
December 28, 2007
First Distribution Date:
January 10, 2008
Initial Master Servicer: Initial Trustee:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer: Initial Certificate Administrator and
Centerline Servicing Inc. REMIC Administrator: LaSalle Bank
National Association
Certificate No.: XW-[1] [2] [3] [4] 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 CERTIFICATE ADMINISTRATOR, 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, CERTIFICATE
ADMINISTRATOR, 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.
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 CERTIFICATE ADMINISTRATOR 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, the Trustee, the Certificate
Administrator 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 Certificate Administrator 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 Certificate
Administrator 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 Certificate Administrator 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 Certificate Administrator 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
Certificate Administrator, 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
Certificate Administrator, 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 Certificate Administrator 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, the
Certificate Administrator and REMIC Administrator thereunder and the rights of
the Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Administrator 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 Certificate Administrator has caused this Certificate
to be duly executed.
LaSalle Bank National Association,
as Certificate Administrator
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class XW Certificates referred to in the within mentioned
Agreement.
Dated: December 28, 2007
LaSalle Bank National Association,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ________________________________________________________.
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-8
Form of Class A-M Certificate
CLASS A-M COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-5
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$185,850,000
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class A-M Certificates as of the Issue
December 1, 2007 Date:
$185,850,000
Cut-off Date: Initial Pool Balance: $1,858,595,584
December 1, 2007
Issue Date:
December 28, 2007
First Distribution Date:
January 10, 2008
Initial Master Servicer: Initial Trustee:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer: Initial Certificate Administrator and
Centerline Servicing Inc. REMIC Administrator: LaSalle Bank
National Association
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 CERTIFICATE ADMINISTRATOR, 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, CERTIFICATE
ADMINISTRATOR, 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 CERTIFICATE ADMINISTRATOR 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, the Trustee, the Certificate Administrator 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 Certificate Administrator 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 Certificate
Administrator 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 Certificate Administrator 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 Certificate Administrator 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 Certificate Administrator 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
Certificate Administrator, 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
Certificate Administrator, 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 Certificate Administrator 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, the
Certificate Administrator and REMIC Administrator thereunder and the rights of
the Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Administrator 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 Certificate Administrator has caused this Certificate
to be duly executed.
LaSalle Bank National Association,
as Certificate Administrator
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-M Certificates referred to in the within mentioned
Agreement.
Dated: December 28, 2007
LaSalle Bank National Association,
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-J Certificate
CLASS A-J COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-5
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$139,405,000
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class A-J Certificates as of the Issue
December 1, 2007 Date:
$139,405,000
Cut-off Date: Initial Pool Balance: $1,858,595,584
December 1, 2007
Issue Date:
December 28, 2007
First Distribution Date:
January 10, 2008
Initial Master Servicer: Initial Trustee:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer: Initial Certificate Administrator and
Centerline Servicing Inc. REMIC Administrator: LaSalle Bank
National Association
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 CERTIFICATE ADMINISTRATOR, 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, CERTIFICATE
ADMINISTRATOR, 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 CERTIFICATE ADMINISTRATOR 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, the Trustee, the Certificate Administrator 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 Certificate Administrator 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 Certificate
Administrator 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 Certificate Administrator 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 Certificate Administrator 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 Certificate Administrator 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
Certificate Administrator, 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
Certificate Administrator, 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 Certificate Administrator 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, the
Certificate Administrator and REMIC Administrator thereunder and the rights of
the Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Administrator 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 Certificate Administrator has caused this Certificate
to be duly executed.
LaSalle Bank National Association,
as Certificate Administrator
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-J Certificates referred to in the within mentioned
Agreement.
Dated: December 28, 2007
LaSalle Bank National Association,
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 B Certificate
CLASS B COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-5
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$20,909,000
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class B Certificates as of the Issue
December 1, 2007 Date:
$20,909,000
Cut-off Date: Initial Pool Balance: $1,858,595,584
December 1, 2007
Issue Date:
December 28, 2007
First Distribution Date:
January 10, 2008
Initial Master Servicer: Initial Trustee:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer: Initial Certificate Administrator and
Centerline Servicing Inc. REMIC Administrator: LaSalle Bank
National Association
Certificate No.: B-[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 CERTIFICATE ADMINISTRATOR, 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, CERTIFICATE
ADMINISTRATOR, 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 CERTIFICATE ADMINISTRATOR 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, the Trustee, the Certificate Administrator 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 Certificate Administrator 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 Certificate
Administrator 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 Certificate Administrator 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 Certificate Administrator 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 Certificate Administrator 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
Certificate Administrator, 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
Certificate Administrator, 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 Certificate Administrator 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, the
Certificate Administrator and REMIC Administrator thereunder and the rights of
the Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Administrator 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 Certificate Administrator has caused this Certificate
to be duly executed.
LaSalle Bank National Association,
as Certificate Administrator
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates referred to in the within mentioned
Agreement.
Dated: December 28, 2007
LaSalle Bank National Association,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ________________________________________________________.
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-11
Form of Class C Certificate
CLASS C COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-5
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$13,939,000
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class C Certificates as of the Issue
December 1, 2007 Date: $13,939,000
Cut-off Date: Initial Pool Balance: $1,858,595,584
December 1, 2007
Issue Date:
December 28, 2007
First Distribution Date:
January 10, 2008
Initial Master Servicer: Initial Trustee:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer: Initial Certificate Administrator and
Centerline Servicing Inc. REMIC Administrator: LaSalle Bank
National Association
Certificate No.: C-[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 CERTIFICATE ADMINISTRATOR, 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, CERTIFICATE
ADMINISTRATOR, 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 CERTIFICATE ADMINISTRATOR 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, the Trustee, the Certificate Administrator 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 Certificate Administrator 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 Certificate
Administrator 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 Certificate Administrator 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 Certificate Administrator 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 Certificate Administrator 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
Certificate Administrator, 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
Certificate Administrator, 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 Certificate Administrator 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, the
Certificate Administrator and REMIC Administrator thereunder and the rights of
the Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Administrator 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 Certificate Administrator has caused this Certificate
to be duly executed.
LaSalle Bank National Association,
as Certificate Administrator
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class C Certificates referred to in the within mentioned
Agreement.
Dated: December 28, 2007
LaSalle Bank National Association,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ________________________________________________________.
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-12
Form of Class D Certificate
CLASS D COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-5
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$20,909,000
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class D Certificates as of the Issue
December 1, 2007 Date:
$20,909,000
Cut-off Date: Initial Pool Balance: $1,858,595,584
December 1, 2007
Issue Date:
December 28, 2007
First Distribution Date:
January 10, 2008
Initial Master Servicer: Initial Trustee:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer: Initial Certificate Administrator and
Centerline Servicing Inc. REMIC Administrator: LaSalle Bank
National Association
Certificate No.: D-[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 CERTIFICATE ADMINISTRATOR, 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, CERTIFICATE
ADMINISTRATOR, 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 CERTIFICATE ADMINISTRATOR 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, the Trustee, the Certificate Administrator 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 Certificate Administrator 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 Certificate
Administrator 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 Certificate Administrator 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 Certificate Administrator 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 Certificate Administrator 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
Certificate Administrator, 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
Certificate Administrator, 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 Certificate Administrator 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, the
Certificate Administrator and REMIC Administrator thereunder and the rights of
the Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Administrator 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 Certificate Administrator has caused this Certificate
to be duly executed.
LaSalle Bank National Association,
as Certificate Administrator
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class D Certificates referred to in the within mentioned
Agreement.
Dated: December 28, 2007
LaSalle Bank National Association,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ________________________________________________________.
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-13
Form of Class E Certificate
CLASS E COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-5
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$18,585,000
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class E Certificates as of the Issue
December 1, 2007 Date:
$18,585,000
Cut-off Date: Initial Pool Balance: $1,858,595,584
December 1, 2007
Issue Date:
December 28, 2007
First Distribution Date:
January 10, 2008
Initial Master Servicer: Initial Trustee:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer: Initial Certificate Administrator and
Centerline Servicing Inc. REMIC Administrator: LaSalle Bank
National Association
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 CERTIFICATE ADMINISTRATOR, 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, CERTIFICATE
ADMINISTRATOR, 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 CERTIFICATE ADMINISTRATOR 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, the Trustee, the Certificate Administrator 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 Certificate Administrator 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 Certificate
Administrator 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 Certificate Administrator 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 Certificate Administrator 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 Certificate Administrator 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
Certificate Administrator, 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
Certificate Administrator, 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 Certificate Administrator 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, the
Certificate Administrator and REMIC Administrator thereunder and the rights of
the Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Administrator 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 Certificate Administrator has caused this Certificate
to be duly executed.
LaSalle Bank National Association,
as Certificate Administrator
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class E Certificates referred to in the within mentioned
Agreement.
Dated: December 28, 2007
LaSalle Bank National Association,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ________________________________________________________.
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-14
Form of Class F Certificate
CLASS F COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-5
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$11,616,000
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class F Certificates as of the Issue
December 1, 2007 Date:
$11,616,000
Cut-off Date: Initial Pool Balance: $1,858,595,584
December 1, 2007
Issue Date:
December 28, 2007
First Distribution Date:
January 10, 2008
Initial Master Servicer: Initial Trustee:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer: Initial Certificate Administrator and
Centerline Servicing Inc. REMIC Administrator: LaSalle Bank
National Association
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 CERTIFICATE ADMINISTRATOR, 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, CERTIFICATE
ADMINISTRATOR, 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 CERTIFICATE ADMINISTRATOR 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, the Trustee, the Certificate Administrator 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 Certificate Administrator 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 Certificate
Administrator 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 Certificate Administrator 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 Certificate Administrator 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 Certificate Administrator 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
Certificate Administrator, 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
Certificate Administrator, 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 Certificate Administrator 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, the
Certificate Administrator and REMIC Administrator thereunder and the rights of
the Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Administrator 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 Certificate Administrator has caused this Certificate
to be duly executed.
LaSalle Bank National Association,
as Certificate Administrator
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class F Certificates referred to in the within mentioned
Agreement.
Dated: December 28, 2007
LaSalle Bank National Association,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ________________________________________________________.
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-15
Form of Class G Certificate
CLASS G COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-5
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$18,585,000
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class G Certificates as of the Issue
December 1, 2007 Date:
$18,585,000
Cut-off Date: Initial Pool Balance: $1,858,595,584
December 1, 2007
Issue Date:
December 28, 2007
First Distribution Date:
January 10, 2008
Initial Master Servicer: Initial Trustee:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer: Initial Certificate Administrator and
Centerline Servicing Inc. REMIC Administrator: LaSalle Bank
National Association
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 CERTIFICATE ADMINISTRATOR, 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, CERTIFICATE
ADMINISTRATOR, 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 CERTIFICATE ADMINISTRATOR 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, the Trustee, the Certificate Administrator 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 Certificate Administrator 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 Certificate
Administrator 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 Certificate Administrator 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 Certificate Administrator 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 Certificate Administrator 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
Certificate Administrator, 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
Certificate Administrator, 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 Certificate Administrator 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, the
Certificate Administrator and REMIC Administrator thereunder and the rights of
the Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Administrator 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 Certificate Administrator has caused this Certificate
to be duly executed.
LaSalle Bank National Association,
as Certificate Administrator
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class G Certificates referred to in the within mentioned
Agreement.
Dated: December 28, 2007
LaSalle Bank National Association,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ________________________________________________________.
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-16
Form of Class H Certificate
CLASS H COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-5
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$20,909,000
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class H Certificates as of the Issue
December 1, 2007 Date:
$20,909,000
Cut-off Date: Initial Pool Balance: $1,858,595,584
December 1, 2007
Issue Date:
December 28, 2007
First Distribution Date:
January 10, 2008
Initial Master Servicer: Initial Trustee:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer: Initial Certificate Administrator and
Centerline Servicing Inc. REMIC Administrator: LaSalle Bank
National Association
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 CERTIFICATE ADMINISTRATOR, 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, CERTIFICATE
ADMINISTRATOR, 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 CERTIFICATE ADMINISTRATOR 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, the Trustee, the Certificate Administrator 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 Certificate Administrator 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 Certificate
Administrator 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 Certificate Administrator 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 Certificate Administrator 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 Certificate Administrator 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
Certificate Administrator, 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
Certificate Administrator, 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 Certificate Administrator 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, the
Certificate Administrator and REMIC Administrator thereunder and the rights of
the Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Administrator 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 Certificate Administrator has caused this Certificate
to be duly executed.
LaSalle Bank National Association,
as Certificate Administrator
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class H Certificates referred to in the within mentioned
Agreement.
Dated: December 28, 2007
LaSalle Bank National Association,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ________________________________________________________.
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-17
Form of Class J Certificate
CLASS J COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-5
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$16,262,000
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class J Certificates as of the Issue
December 1, 2007 Date:
$16,262,000
Cut-off Date: Initial Pool Balance: $1,858,595,584
December 1, 2007
Issue Date:
December 28, 2007
First Distribution Date:
January 10, 2008
Initial Master Servicer: Initial Trustee:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer: Initial Certificate Administrator and
Centerline Servicing Inc. REMIC Administrator: LaSalle Bank
National Association
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 CERTIFICATE ADMINISTRATOR, 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, CERTIFICATE
ADMINISTRATOR, 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 CERTIFICATE ADMINISTRATOR 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, the Trustee, the Certificate Administrator 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 Certificate Administrator 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 Certificate
Administrator 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 Certificate Administrator 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 Certificate Administrator 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 Certificate Administrator 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
Certificate Administrator, 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
Certificate Administrator, 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 Certificate Administrator 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, the
Certificate Administrator and REMIC Administrator thereunder and the rights of
the Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Administrator 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 Certificate Administrator has caused this Certificate
to be duly executed.
LaSalle Bank National Association,
as Certificate Administrator
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class J Certificates referred to in the within mentioned
Agreement.
Dated: December 28, 2007
LaSalle Bank National Association,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
------------ --------------------------------- ---------------------- -------------
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ________________________________________________________.
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-18
Form of Class K Certificate
CLASS K COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-5
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$18,585,000
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class K Certificates as of the Issue
December 1, 2007 Date:
$18,585,000
Cut-off Date: Initial Pool Balance: $1,858,595,584
December 1, 2007
Issue Date:
December 28, 2007
First Distribution Date:
January 10, 2008
Initial Master Servicer: Initial Trustee:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer: Initial Certificate Administrator and
Centerline Servicing Inc. REMIC Administrator: LaSalle Bank
National Association
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 CERTIFICATE ADMINISTRATOR, 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, CERTIFICATE
ADMINISTRATOR, 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 CERTIFICATE ADMINISTRATOR 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, the Trustee, the Certificate Administrator 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 Certificate Administrator 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 Certificate
Administrator 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 Certificate Administrator 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 Certificate Administrator 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 Certificate Administrator 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
Certificate Administrator, 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
Certificate Administrator, 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 Certificate Administrator 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, the
Certificate Administrator and REMIC Administrator thereunder and the rights of
the Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Administrator 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 Certificate Administrator has caused this Certificate
to be duly executed.
LaSalle Bank National Association,
as Certificate Administrator
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class K Certificates referred to in the within mentioned
Agreement.
Dated: December 28, 2007
LaSalle Bank National Association,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ________________________________________________________.
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-19
Form of Class L Certificate
CLASS L COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-5
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$11,616,000
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class L Certificates as of the Issue
December 1, 2007 Date:
$11,616,000
Cut-off Date: Initial Pool Balance: $1,858,595,584
December 1, 2007
Issue Date:
December 28, 2007
First Distribution Date:
January 10, 2008
Initial Master Servicer: Initial Trustee:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer: Initial Certificate Administrator and
Centerline Servicing Inc. REMIC Administrator: LaSalle Bank
National Association
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 CERTIFICATE ADMINISTRATOR, 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, CERTIFICATE
ADMINISTRATOR, 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 CERTIFICATE ADMINISTRATOR 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, the Trustee, the Certificate Administrator 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 Certificate Administrator 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 Certificate
Administrator 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 Certificate Administrator 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 Certificate Administrator 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 Certificate Administrator 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
Certificate Administrator, 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
Certificate Administrator, 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 Certificate Administrator 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, the
Certificate Administrator and REMIC Administrator thereunder and the rights of
the Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Administrator 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 Certificate Administrator has caused this Certificate
to be duly executed.
LaSalle Bank National Association,
as Certificate Administrator
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class L Certificates referred to in the within mentioned
Agreement.
Dated: December 28, 2007
LaSalle Bank National Association,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ________________________________________________________.
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-20
Form of Class M Certificate
CLASS M COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-5
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$6,969,000
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class M Certificates as of the Issue
December 1, 2007 Date: $6,969,000
Cut-off Date: Initial Pool Balance: $1,858,595,584
December 1, 2007
Issue Date:
December 28, 2007
First Distribution Date:
January 10, 2008
Initial Master Servicer: Initial Trustee:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer: Initial Certificate Administrator and
Centerline Servicing Inc. REMIC Administrator: LaSalle Bank
National Association
Certificate No.: M-[1] CUSIP No.: [__________](1)
[__________](2)
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(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 CERTIFICATE ADMINISTRATOR, 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, CERTIFICATE
ADMINISTRATOR, 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 CERTIFICATE ADMINISTRATOR 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, the Trustee, the Certificate Administrator 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 Certificate Administrator 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 Certificate
Administrator 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 Certificate Administrator 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 Certificate Administrator 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 Certificate Administrator 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
Certificate Administrator, 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
Certificate Administrator, 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 Certificate Administrator 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, the
Certificate Administrator and REMIC Administrator thereunder and the rights of
the Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Administrator 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 Certificate Administrator has caused this Certificate
to be duly executed.
LaSalle Bank National Association,
as Certificate Administrator
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class M Certificates referred to in the within mentioned
Agreement.
Dated: December 28, 2007
LaSalle Bank National Association,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ________________________________________________________.
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-21
Form of Class N Certificate
CLASS N COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-5
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$4,646,000
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class N Certificates as of the Issue
December 1, 2007 Date:
$4,646,000
Cut-off Date: Initial Pool Balance: $1,858,595,584
December 1, 2007
Issue Date:
December 28, 2007
First Distribution Date:
January 10, 2008
Initial Master Servicer: Initial Trustee:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer: Initial Certificate Administrator and
Centerline Servicing Inc. REMIC Administrator: LaSalle Bank
National Association
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 CERTIFICATE ADMINISTRATOR, 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, CERTIFICATE
ADMINISTRATOR, 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 CERTIFICATE ADMINISTRATOR 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 Certificate Administrator 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 Certificate
Administrator 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 Certificate Administrator 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 Certificate Administrator 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 Certificate Administrator 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 Certificate Administrator, 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 Certificate Administrator 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, the
Certificate Administrator and REMIC Administrator thereunder and the rights of
the Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Administrator 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 Certificate Administrator has caused this Certificate
to be duly executed.
LaSalle Bank National Association,
as Certificate Administrator
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class N Certificates referred to in the within mentioned
Agreement.
Dated: December 28, 2007
LaSalle Bank National Association,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ________________________________________________________.
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-22
Form of Class O Certificate
CLASS O COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-5
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$6,969,000
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class O Certificates as of the Issue
December 1, 2007 Date: $6,969,000
Cut-off Date: Initial Pool Balance: $1,858,595,584
December 1, 2007
Issue Date:
December 28, 2007
First Distribution Date:
January 10, 2008
Initial Master Servicer: Initial Trustee:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer: Initial Certificate Administrator and
Centerline Servicing Inc. REMIC Administrator: LaSalle Bank
National Association
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 CERTIFICATE ADMINISTRATOR, 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, CERTIFICATE
ADMINISTRATOR, 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 CERTIFICATE ADMINISTRATOR 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, the Trustee, the Certificate Administrator 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 Certificate Administrator 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 Certificate
Administrator 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 Certificate Administrator 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 Certificate Administrator 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 Certificate Administrator 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
Certificate Administrator, 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
Certificate Administrator, 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 Certificate Administrator 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, the
Certificate Administrator and REMIC Administrator thereunder and the rights of
the Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Administrator 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 Certificate Administrator has caused this Certificate
to be duly executed.
LaSalle Bank National Association,
as Certificate Administrator
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class O Certificates referred to in the within mentioned
Agreement.
Dated: December 28, 2007
LaSalle Bank National Association,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ________________________________________________________.
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-23
Form of Class P Certificate
CLASS P COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-5
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$2,323,000
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class P Certificates as of the Issue
December 1, 2007 Date:
$2,323,000
Cut-off Date: Initial Pool Balance: $1,858,595,584
December 1, 2007
Issue Date:
December 28, 2007
First Distribution Date:
January 10, 2008
Initial Master Servicer: Initial Trustee:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer: Initial Certificate Administrator and
Centerline Servicing Inc. REMIC Administrator: LaSalle Bank
National Association
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 CERTIFICATE ADMINISTRATOR, 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, CERTIFICATE
ADMINISTRATOR, 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 CERTIFICATE ADMINISTRATOR 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, the Trustee, the Certificate Administrator 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 Certificate Administrator 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 Certificate
Administrator 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 Certificate Administrator 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 Certificate Administrator 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 Certificate Administrator 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
Certificate Administrator, 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
Certificate Administrator, 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 Certificate Administrator 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, the
Certificate Administrator and REMIC Administrator thereunder and the rights of
the Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Administrator 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 Certificate Administrator has caused this Certificate
to be duly executed.
LaSalle Bank National Association,
as Certificate Administrator
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class P Certificates referred to in the within mentioned
Agreement.
Dated: December 28, 2007
LaSalle Bank National Association,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ________________________________________________________.
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-24
Form of Class Q Certificate
CLASS Q COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-5
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$4,646,000
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class Q Certificates as of the Issue
December 1, 2007 Date: $4,646,000
Cut-off Date: Initial Pool Balance: $1,858,595,584
December 1, 2007
Issue Date:
December 28, 2007
First Distribution Date:
January 10, 2008
Initial Master Servicer: Initial Trustee:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer: Initial Certificate Administrator and
Centerline Servicing Inc. REMIC Administrator: LaSalle Bank
National Association
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 CERTIFICATE ADMINISTRATOR, 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, CERTIFICATE
ADMINISTRATOR, 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 CERTIFICATE ADMINISTRATOR 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, the Trustee, the Certificate Administrator 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 Certificate Administrator 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 Certificate
Administrator 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 Certificate Administrator 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 Certificate Administrator 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 Certificate Administrator 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
Certificate Administrator, 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
Certificate Administrator, 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 Certificate Administrator 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, the
Certificate Administrator and REMIC Administrator thereunder and the rights of
the Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Administrator 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 Certificate Administrator has caused this Certificate
to be duly executed.
LaSalle Bank National Association,
as Certificate Administrator
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class Q Certificates referred to in the within mentioned
Agreement.
Dated: December 28, 2007
LaSalle Bank National Association,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ________________________________________________________.
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-25
Form of Class S Certificate
CLASS S COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-5
[RULE 144A](1) [REG S](2) CERTIFICATE
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by:
BANC OF AMERICA COMMERCIAL MORTGAGE INC.
Pass-Through Rate: Certificate Principal Balance of this
Variable Certificate as of the Issue Date:
$34,856,583
Date of Pooling and Servicing Class Principal Balance of all the
Agreement: Class S Certificates as of the Issue
December 1, 2007 Date: $34,856,583
Cut-off Date: Initial Pool Balance: $1,858,595,584
December 1, 2007
Issue Date:
December 28, 2007
First Distribution Date:
January 10, 2008
Initial Master Servicer: Initial Trustee:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer: Initial Certificate Administrator and
Centerline Servicing Inc. REMIC Administrator: LaSalle Bank
National Association
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 CERTIFICATE ADMINISTRATOR, 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, CERTIFICATE
ADMINISTRATOR, 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 CERTIFICATE ADMINISTRATOR 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, the Trustee, the Certificate Administrator 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 Certificate Administrator 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 Certificate
Administrator 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 Certificate Administrator 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 Certificate Administrator 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 Certificate Administrator 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
Certificate Administrator, 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
Certificate Administrator, 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 Certificate Administrator 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, the
Certificate Administrator and REMIC Administrator thereunder and the rights of
the Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Administrator 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 Certificate Administrator has caused this Certificate
to be duly executed.
LaSalle Bank National Association,
as Certificate Administrator
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class S Certificates referred to in the within mentioned
Agreement.
Dated: December 28, 2007
LaSalle Bank National Association,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ________________________________________________________.
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-26
Form of Class V Certificate
CLASS V COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-5
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 Percentage Interest evidenced by this
Agreement: Certificate in the related Class:
December 1, 2007 [100]%
Cut-off Date: Initial Pool Balance:
December 1, 2007 $1,858,595,584
Issue Date:
December 28, 2007
First Distribution Date:
January 10, 2008
Initial Master Servicer: Initial Trustee:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer: Initial Certificate Administrator and
Centerline Servicing Inc. REMIC Administrator: LaSalle Bank
National Association
Certificate No.: V-[1]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, CERTIFICATE
ADMINISTRATOR, 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 CERTIFICATE ADMINISTRATOR 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 Centerline REIT Inc. 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, the
Trustee, the Certificate Administrator 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 Certificate Administrator 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 Certificate
Administrator 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 Certificate Administrator 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 Certificate Administrator 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
Certificate Administrator, 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
Certificate Administrator, 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 Certificate Administrator 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 Certificate Administrator has caused this Certificate
to be duly executed.
LaSalle Bank National Association,
as Certificate Administrator
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class V Certificates referred to in the within mentioned
Agreement.
Dated: December 28, 2007
LaSalle Bank National Association,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ________________________________________________________.
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-27
Form of Class R-I Certificate
CLASS R-I COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-5
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 Percentage Interest evidenced by this
Agreement: Certificate in the related Class:
December 1, 2007 100%
Cut-off Date: Initial Pool Balance: $1,858,595,584
December 1, 2007
Issue Date:
December 28, 2007
First Distribution Date:
January 10, 2008
Initial Master Servicer: Initial Trustee:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer: Initial Certificate Administrator and
Centerline Servicing Inc. REMIC Administrator: LaSalle Bank
National Association
Certificate No.: R-I-[1]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, CERTIFICATE
ADMINISTRATOR, 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 CERTIFICATE ADMINISTRATOR 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] 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, the
Trustee, the Certificate Administrator 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 Certificate
Administrator 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
Certificate Administrator 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 Certificate Administrator 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 Certificate Administrator 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 Certificate Administrator 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
Certificate Administrator, 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
Certificate Administrator, 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 Certificate Administrator 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, the
Certificate Administrator and REMIC Administrator thereunder and the rights of
the Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Administrator 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 Certificate Administrator has caused this Certificate
to be duly executed.
LaSalle Bank National Association,
as Certificate Administrator
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-I Certificates referred to in the within mentioned
Agreement.
Dated: December 28, 2007
LaSalle Bank National Association,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ________________________________________________________.
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
Exhibit A-28
Form of Class R-II Certificate
CLASS R-II COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE,
SERIES 2007-5
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 Percentage Interest evidenced by this
Agreement: Certificate in the related Class:
December 1, 2007 100%
Cut-off Date: Initial Pool Balance: $1,858,595,584
December 1, 2007
Issue Date:
December 28, 2007
First Distribution Date:
January 10, 2008
Initial Master Servicer: Initial Trustee:
Bank of America, National Association Xxxxx Fargo Bank, N.A.
Initial Special Servicer: Initial Certificate Administrator and
Centerline Servicing Inc. REMIC Administrator: LaSalle Bank
National Association
Certificate No.: R-II-[1]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, MASTER SERVICER, SPECIAL SERVICER, TRUSTEE, CERTIFICATE
ADMINISTRATOR, 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 CERTIFICATE ADMINISTRATOR 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] 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, the
Trustee, the Certificate Administrator 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 Certificate
Administrator 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
Certificate Administrator 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 Certificate Administrator 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 Certificate Administrator 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 Certificate Administrator 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
Certificate Administrator, 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
Certificate Administrator, 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 Certificate Administrator 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, the
Certificate Administrator and REMIC Administrator thereunder and the rights of
the Certificateholders thereunder, at any time by the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Administrator 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 Certificate Administrator has caused this Certificate
to be duly executed.
LaSalle Bank National Association,
as Certificate Administrator
By:____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-II Certificates referred to in the within
mentioned Agreement.
Dated: December 28, 2007
LaSalle Bank National Association,
as Certificate Registrar
By:____________________________________
Authorized Signatory
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred for, or
issued in exchange for or upon Remaining Principal
transfer of, an interest in this Amount of Book Entry Notation
Date Book-Entry Certificate Certificate Made By
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ______________________________________________________ (please print or
typewrite name and address including postal zip code of assignee) the beneficial
ownership interest in the Trust Fund evidenced by the within Commercial Mortgage
Pass-Through Certificate and hereby authorize(s) the registration of transfer of
such interest to the above named assignee on the Certificate Register of the
Trust Fund.
I (we) further direct the issuance of a new Commercial Mortgage Pass-Through
Certificate of a like Percentage Interest and Class to the above named assignee
and delivery of such Commercial Mortgage Pass-Through Certificate to the
following address: ________________________________________________________.
_______________________________________________________________
Dated:
_______________________________________
Signature by or on behalf of Assignor
_______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise, in
immediately available funds, to ______________________________________ for the
account of _________________________________________________.
Distributions made by check (such check to be made payable to
____________________________________) and all applicable statements and notices
should be mailed to _______________________________________________.
This information is provided by _______________________________________, the
assignee named above, or _________________________________________, as its
agent.
EXHIBIT B
FORM OF INVESTMENT REPRESENTATION LETTER
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Global Securities and Trust Services - 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 2007-5
----------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement dated as of December 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, Centerline
Servicing Inc., as Special Servicer, Xxxxx Fargo Bank, N.A., as Trustee, and
LaSalle Bank National Association, as Certificate Administrator and REMIC
Administrator on behalf of the holders of Banc of America Commercial Mortgage
Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-5 (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) (other than with respect to the REMIC
Residual Certificates) to institutional "accredited investors" meeting the
requirements of Rule 501(a)(1), (2), (3) or (7) of Regulation D
promulgated under the 1933 Act and applicable state securities laws,
pursuant to any other exemption from the registration requirements of the
1933 Act and applicable state securities laws, subject in the case of this
clause (ii) to (w) the receipt by the Certificate Registrar of a letter
substantially in the form hereof, (x) the receipt by the Certificate
Registrar of an opinion of counsel acceptable to the Certificate Registrar
that such reoffer, resale, pledge or transfer is in compliance with the
1933 Act, (y) the receipt by the Certificate Registrar of such other
evidence acceptable to the Certificate Registrar that such reoffer,
resale, pledge or transfer is in compliance with the 1933 Act and other
applicable laws and (z) a written undertaking to reimburse the Trust for
any costs incurred by it in connection with the proposed transfer. The
Purchaser understands that the Certificate (and any subsequent
Certificate) has not been registered under the 1933 Act, by reason of a
specified exemption from the registration provisions of the 1933 Act which
depends upon, among other things, the bona fide nature of the Purchaser's
investment intent (or intent to resell to only certain investors in
certain exempted transactions) as expressed herein.
(3) The Purchaser has reviewed the Private Placement Memorandum
relating to the Certificates (the "Private Placement Memorandum") and the
agreements and other materials referred to therein and has had the
opportunity to ask questions and receive answers concerning the terms and
conditions of the transactions contemplated by the Private Placement
Memorandum.
(4) The Purchaser acknowledges that the Certificate (and any
Certificate issued on transfer or exchange thereof) has not been
registered or qualified under the 1933 Act or the securities laws of any
State or any other jurisdiction, and that the Certificate cannot be resold
unless it is registered or qualified thereunder or unless an exemption
from such registration or qualification is available.
(5) The Purchaser hereby undertakes to be bound by the terms and
conditions of the Pooling and Servicing Agreement in its capacity as an
owner of a Certificate or Certificates, as the case may be (each, a
"Certificateholder"), in all respects as if it were a signatory thereto.
This undertaking is made for the benefit of the Trust, the Certificate
Registrar and all Certificateholders present and future.
(6) The Purchaser will not sell or otherwise transfer any portion of
the Certificate or Certificates, except in compliance with Section 5.02 of
the Pooling and Servicing Agreement.
(7) Check one of the following:*
|_| The Purchaser is a U.S. Tax Person (as defined below) and it has
attached hereto an Internal Revenue Service ("IRS") Form W-9 (or successor
form).
|_| The Purchaser is not a "U.S. Tax Person" and under applicable
law in effect on the date hereof, no taxes will be required to be withheld by
the Certificate Registrar (or its agent) with respect to distributions to be
made on the Certificate. The Purchaser has attached hereto [(i) a duly executed
IRS Form W-8BEN (or successor form), which identifies such Purchaser as the
beneficial owner of the Certificate and states that such Purchaser is not a U.S.
Tax Person, (ii) two duly executed copies of IRS Form W-8IMY (with all
appropriate attachments) or (iii)]** two duly executed copies of IRS Form W-8ECI
(or successor form), which identify such Purchaser as the beneficial owner of
the Certificate and state that interest and original issue discount on the
Certificate and Permitted Investments is, or is expected to be, effectively
connected with a United States trade or business. The Purchaser agrees to
provide to the Certificate Registrar an updated [IRS Form W-8BEN, IRS Form
W-8IMY or]** IRS Form W-8ECI, as the case may be, any applicable successor IRS
forms, or such other certifications as the Certificate Registrar may reasonably
request, on or before the date that any such IRS form or certification expires
or becomes obsolete, or promptly after the occurrence of any event requiring a
change in the most recent IRS form of certification furnished by it to the
Certificate Registrar.
For this purpose, "U.S. Tax Person" means a citizen or resident of
the United States for United States federal income tax purposes, a corporation
or partnership (except to the extent provided in applicable Treasury
regulations) created or organized in or under the laws of the United States, any
State thereof or the District of Columbia, including any entity treated as a
corporation or partnership for federal income tax purposes, an estate the income
of which is subject to United States federal income taxation regardless of its
source, or a trust if a court within the United States is able to exercise
primary supervision over the administration of such trust, and one or more
United States fiduciaries have the authority to control all substantial
decisions of such trust (or, to the extent provided in applicable Treasury
regulations, certain trusts in existence on August 20, 1996 which are eligible
to elect to be treated as U.S. Tax Persons).
--------------------------
* 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 )
)
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 2007-5, Class R-[I] [II] evidencing a ____% Percentage
Interest in the Class to which it belongs (the "REMIC Residual
Certificate")), a __________________________________ duly organized and
validly existing under the laws of [the State of ____] [the United
States], on behalf of which he/she makes this affidavit. Capitalized terms
used but not defined herein have the respective meanings assigned thereto
in the Pooling and Servicing Agreement pursuant to which the REMIC
Residual Certificate was issued (the "Pooling and Servicing Agreement").
(2) The Transferee (i) is [and, as of [date of transfer], will be] a
Permitted Transferee and will endeavor to remain a Permitted Transferee
for so long as it holds the REMIC Residual Certificate, and (ii) is
acquiring the REMIC Residual Certificate for its own account or for the
account of another prospective transferee from which it has received an
affidavit in substantially the same form as this affidavit.
(3) The Transferee is aware (i) of the tax that would be imposed on
transfers of the REMIC Residual Certificate to Disqualified Organizations
under the Internal Revenue Code of 1986, as amended; (ii) that such tax
would be imposed on the transferor, or, if such transfer is through an
agent (which person includes a broker, nominee or middleman) for a
Disqualified Organization (defined below), on the agent; (iii) that the
person otherwise liable for the tax shall be relieved of liability for the
tax if the transferee furnishes to such person an affidavit that the
transferee is not a Disqualified Organization and, at the time of
transfer, such person does not have actual knowledge that the affidavit is
false; and (iv) that the REMIC Residual Certificate may be a "non-economic
residual interest" within the meaning of Treasury Regulations Section
1.860E-1(c) and that the transferor of a "non-economic residual interest"
will remain liable for any taxes due with respect to the income on such
residual interest, unless no significant purpose of the transfer is to
enable the transferor to impede the assessment or collection of tax. A
"Disqualified Organization" is either (a) the United States, a State, or
any agency or instrumentality of any of the foregoing (other than an
instrumentality that is a corporation if all of its activities are subject
to tax and a majority of its board of directors is not selected by any
such governmental unit), (b) a foreign government, International
Organization or agency or instrumentality of either of the foregoing, (c)
an organization that is exempt from tax imposed by Chapter 1 of the Code
(including the tax imposed by Code Section 511 on unrelated business
taxable income) on any excess inclusions (as defined in Code Section
860E(c)(1)) with respect to the REMIC Residual Certificates (except
certain farmers' cooperatives described in Code Section 521), (d) rural
electric and telephone cooperatives described in Code Section 1381(a)(2)
or (e) any other person so designated by the Certificate Administrator
based upon an opinion of counsel to the effect that any transfer to such
person may cause any REMIC to fail to qualify as a REMIC at any time that
the Certificates are outstanding. The terms "United States", "State" and
"International Organization" shall have the meanings set forth in Code
Section 7701 or successor provisions.
(4) The Transferee is aware of the tax imposed on a "pass-through
entity" holding the REMIC Residual Certificate if at any time during the
taxable year of the pass-through entity a "disqualified organization" is
the record holder of an interest in such entity. (For this purpose, a
"pass-through entity" includes a regulated investment company, a real
estate investment trust or common trust fund, a partnership, trust or
estate, and certain cooperatives.)
(5) The Transferee is aware that the Certificate Registrar will not
register any transfer of the REMIC Residual Certificate by the Transferee
unless the Transferee's transferee, or such transferee's agent, delivers
to the Certificate Registrar, among other things, an affidavit and
agreement in substantially the same form as this affidavit and agreement.
The Transferee expressly agrees that it will not consummate any such
transfer if it knows or believes that any representation contained in such
affidavit and agreement is false.
(6) The Transferee consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to
constitute a reasonable arrangement to ensure that the REMIC Residual
Certificate will only be owned, directly or indirectly, by a Permitted
Transferee.
(7) The Transferee's taxpayer identification number is
______________.
(8) The Transferee has reviewed the provisions of Section 5.02(d) of
the Pooling and Servicing Agreement, a description of which provisions is
set forth in the REMIC Residual Certificate (in particular, clause (ii) of
Section 5.02(d) which authorizes the Certificate Administrator 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___
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Global Securities and Trust Services - Banc of America Commercial Mortgage
Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-5
Re: Banc of America Commercial Mortgage Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-5, 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 December 1, 2007, by and among Banc of
America Commercial Mortgage Inc., as Depositor, Bank of America, National
Association, as Master Servicer, Centerline Servicing Inc., as Special Servicer,
Xxxxx Fargo Bank, N.A., as Trustee, and LaSalle Bank National Association, as
Certificate Administrator 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.
MAC # X0000-000
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services (CMBS) - Banc of America Commercial Mortgage
Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-5
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 December 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, Centerline Servicing Inc., as
Special Servicer, Xxxxx Fargo Bank, N.A., as Trustee, and LaSalle Bank National
Association, as Certificate Administrator 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:
CENTERLINE SERVICING INC.
By:____________________________________
Name:
Title:
Phone:
Please deliver the Mortgage File as follows:
____________________________________________
____________________________________________
Attention: ________________________________
Phone: ___________________________________
EXHIBIT E
FORM OF ERISA REPRESENTATION LETTER
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Global Securities and Trust Services - 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 2007-5
----------------------------------------------------------------
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 2007-5, Class __ (the
"Certificate") issued pursuant to that Pooling and Servicing Agreement, dated as
of December 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, Centerline Servicing Inc., as Special Servicer,
Xxxxx Fargo Bank, N.A., as Trustee, and LaSalle Bank National Association, as
Certificate Administrator 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,
Inc., DBRS Limited or DBRS, Inc. and the Purchaser (a) is purchasing the
Certificates pursuant to Prohibited Transaction Exemption 93-31 as amended
by Prohibited Transaction Exemption 2007-05 and (b) is an "accredited
investor" as defined in Rule 501(a)(1) of Regulation D of the Securities
and Exchange Commission under the Securities Act of 1933, as amended.
(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 Certificate Administrator, the
Trustee, the Certificate Registrar, the Master Servicer, the Special
Servicer, the Placement Agent or the Depositor to any obligation or
liability (including obligations or liabilities under ERISA, Section 4975
of the Code or any such Similar Law) in addition to those set forth in the
Pooling and Servicing Agreement, which Opinion of Counsel will not be at
the expense of the Depositor, the Master Servicer, the Special Servicer,
the Trustee, the Certificate Administrator, the Placement Agent, the
Certificate Registrar or the Trust Fund.
IN WITNESS WHEREOF, the Purchaser hereby executes this
ERISA Representation Letter on the ___th day of _____, ____.
Very truly yours,
_______________________________________
[The Purchaser]
By:____________________________________
Name:
Title:
EXHIBIT F
FORM OF CUSTODIAL CERTIFICATION
[Date]
Banc of America Commercial Mortgage Inc.
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxx
Re: Pooling and Servicing Agreement dated as of December 1, 2007 (the
"Agreement") by and among Banc of America Commercial Mortgage Inc.,
as Depositor, Bank of America, National Association, as Master
Servicer, Centerline Servicing Inc., as Special Servicer, Xxxxx
Fargo Bank, N.A., as Trustee, and LaSalle Bank National Association,
as Certificate Administrator and REMIC Administrator, for the
Certificateholders of the Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-5
--------------------------------------------------------------------
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 Certificate Administrator, 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 Certificate
Administrator, 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 CERTIFICATE ADMINISTRATOR DISTRIBUTION DATE STATEMENT
Banc of America Commercial Mortgage Inc.
Commercial Mortgage Pass-Through Certificates
Series 2007-5
[LOGO] LaSalle Bank
ABN AMRO Statement Date: 10-Jan-08
Payment Date: 10-Jan-08
000 X. XxXxxxx Xxxxxx Xxxxx 0000 Prior Payment: N/A
Xxxxxxx, XX 00000 Next Payment: 11-Feb-08
USA Record Date: 31-Dec-07
Administrator: Analyst:
Xxxxxxx Xxxxxx 312.904.8845 Xxxxxxx Xxxx 714.259.6253
xxxxxxx.xxxxxx@xxxxxxx.xxx xxxxxxx.xxxx@xxxxxxx.xxx
ABN AMRO Acct:
Reporting Package Table of Contents
--------------------------------------------------------------------------------
Issue Id: BACM0705
Monthly Data File Name: BACM0705_200801_3.ZIP
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Page(s)
-------
Statements to Certificateholders Page 2
Cash Reconciliation Summary Page 3
Shortfall Summary Report Page 4
Bond Interest Reconciliation Page 5
Bond Interest Reconciliation Page 6
Rating Information Page 7
Asset-Backed Facts ~ 15 Month Loan Status Page 8
Summary
Delinquent Loan Detail Page 9
Asset-Backed Facts ~ 15 Month Loan Page 10
Payoff/Loss Summary
Historical Collateral Prepayment Page 11
Mortgage Loan Characteristics Page 12-14
Loan Level Detail Page 15
Appraisal Reduction Detail Page 16
Specially Serviced (Part I) - Loan Detail Page 17
Specially Serviced (Part II) - Servicer Page 18
Comments
Modified Loan Detail Page 19
Summary of Loan Maturity Extensions Page 20
Realized Loss Detail Page 21
Historical REO Report Page 22
Material Breaches Detail Page 23
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Closing Date: 28-Dec-2007
First Payment Date: 10-Jan-2007
Rated Final Payment Date: 10-Feb-2051
Determination Date:
--------------------------------------------------------------------------------
Trust Collection Period
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Parties to The Transaction
--------------------------------------------------------------------------------
Depositor: Banc of America Commercial Mortgage Inc.
Master Servicer: Bank of America N.A.
Special Servicer: Centerline Servicing Inc.
Underwriter: Banc of America Securities LLC/RBS Greenwich Capital
Rating Agency: Fitch, Inc./Standard & Poor's Rating Services
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Information is available for this issue from the following sources
--------------------------------------------------------------------------------
LaSalle Web Site xxx.xxxxxxxx.xxx
Servicer Web Site xxx.xxxxxxxxxxxxx.xxx
LaSalle Factor Line 800.246.5761
--------------------------------------------------------------------------------
Page 1 of 23
Banc of America Commercial Mortgage Inc.
Commercial Mortgage Pass-Through Certificates
Series 2007-5
[LOGO] LaSalle Bank
ABN AMRO Statement Date: 10-Jan-08
Payment Date: 10-Jan-08
Prior Payment: N/A
Next Payment: 11-Feb-08
Record Date: 31-Dec-07
------------------------------------------------------------------------------------------------------------------------------------
Original Opening Principal Principal Negative Closing Interest Interest Pass-Through
Class Face Value (1) Balance Payment Adj. or Loss Amortization Balance Payment (2) Adjustment Rate
CUSIP Next Rate (3)
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Total
------------------------------------------------------------------------------------------------------------------------------------
Total P&I Payment
============================
Page 2 of 23
Banc of America Commercial Mortgage Inc.
Commercial Mortgage Pass-Through Certificates
Series 2007-5
[LOGO] LaSalle Bank
ABN AMRO Statement Date: 10-Jan-08
Payment Date: 10-Jan-08
Prior Payment: N/A
Next Payment: 11-Feb-08
Record Date: 31-Dec-07
ABN AMRO Acct:
Cash Reconciliation Summary
--------------------------------------------------------------------------------
Interest Summary
--------------------------------------------------------------------------------
Current Scheduled Interest 0.00
Less Deferred Interest 0.00
Less PPIS Reducing Scheduled Int 0.00
Plus Gross Advance Interest 0.00
Less ASER Interest Adv Reduction 0.00
Less Other Interest Not Advanced 0.00
Less Other Adjustment 0.00
--------------------------------------------------------------------------------
Total 0.00
--------------------------------------------------------------------------------
Unscheduled Interest:
--------------------------------------------------------------------------------
Prepayment Penalties 0.00
Yield Maintenance Penalties 0.00
Other Interest Proceeds 0.00
--------------------------------------------------------------------------------
Total 0.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Less Fee Paid To Servicer 0.00
Less Fee Strips Paid by Servicer 0.00
--------------------------------------------------------------------------------
Less Fees & Expenses Paid By/To Servicer
--------------------------------------------------------------------------------
Special Servicing Fees 0.00
Workout Fees 0.00
Liquidation Fees 0.00
Interest Due Serv on Advances 0.00
Non Recoverable Advances 0.00
Misc. Fees & Expenses 0.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Total Unscheduled Fees & Expenses 0.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Total Interest Due Trust 0.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Less Fees & Expenses Paid By/To Trust
--------------------------------------------------------------------------------
Trustee Fee 0.00
Fee Strips 0.00
Misc. Fees 0.00
Interest Reserve Withholding 0.00
Plus Interest Reserve Deposit 0.00
--------------------------------------------------------------------------------
Total 0.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Total Interest Due Certs 0.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Principal Summary
--------------------------------------------------------------------------------
Scheduled Principal:
--------------------
Current Scheduled Principal 0.00
Advanced Scheduled Principal 0.00
--------------------------------------------------------------------------------
Scheduled Principal 0.00
--------------------------------------------------------------------------------
Unscheduled Principal:
----------------------
Curtailments 0.00
Prepayments in Full 0.00
Liquidation Proceeds 0.00
Repurchase Proceeds 0.00
Other Principal Proceeds 0.00
--------------------------------------------------------------------------------
Total Unscheduled Principal 0.00
--------------------------------------------------------------------------------
Remittance Principal 0.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Remittance P&I Due Trust 0.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Remittance P&I Due Certs 0.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Pool Balance Summary
--------------------------------------------------------------------------------
Balance Count
--------------------------------------------------------------------------------
Beginning Pool 0.00 0
Scheduled Principal 0.00 0
Unscheduled Principal 0.00 0
Deferred Interest 0.00 0
Liquidations 0.00 0
Repurchases 0.00 0
--------------------------------------------------------------------------------
Ending Pool 0.00 0
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Non-P&I Servicing Advance Summary
--------------------------------------------------------------------------------
Amount
--------------------------------------------------------------------------------
Prior Outstanding 0.00
Plus Current Period 0.00
Less Recovered 0.00
Less Non Recovered 0.00
Ending Outstanding 0.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Servicing Fee Summary
--------------------------------------------------------------------------------
Current Servicing Fees 0.00
Plus Fees Advanced for PPIS 0.00
Less Reduction for PPIS 0.00
Plus Delinquent Servicing Fees 0.00
--------------------------------------------------------------------------------
Total Servicing Fees 0.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Cumulative Prepayment Consideration Received
--------------------------------------------------------------------------------
Prepayment Premiums 0.00
Yield Maintenance 0.00
Other Interest 0.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
PPIS Summary
--------------------------------------------------------------------------------
Gross PPIS 0.00
Reduced by PPIE 0.00
Reduced by Shortfalls in Fees 0.00
Reduced by Other Amounts 0.00
--------------------------------------------------------------------------------
PPIS Reducing Scheduled Interest 0.00
--------------------------------------------------------------------------------
PPIS Reducing Servicing Fee 0.00
--------------------------------------------------------------------------------
PPIS Due Certificate 0.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Advance Summary (Advance Made by Servicer)
--------------------------------------------------------------------------------
Principal Interest
--------------------------------------------------------------------------------
Prior Outstanding 0.00 0.00
Plus Current Period 0.00 0.00
Less Recovered 0.00 0.00
Less Non Recovered 0.00 0.00
Ending Outstanding 0.00 0.00
--------------------------------------------------------------------------------
Page 3 of 23
Banc of America Commercial Mortgage Inc.
Commercial Mortgage Pass-Through Certificates
Series 2007-5
[LOGO] LaSalle Bank
ABN AMRO Statement Date: 10-Jan-08
Payment Date: 10-Jan-08
Prior Payment: N/A
Next Payment: 11-Feb-08
Record Date: 31-Dec-07
ABN AMRO Acct:
Interest Adjustments Summary
--------------------------------------------------------------------------------
Shortfall Allocated to the Bonds:
--------------------------------------------------------------------------------
Net Prepayment Int. Shortfalls Allocated to the 0.00
Bonds
Special Servicing Fees 0.00
Workout Fees 0.00
Liquidation Fees 0.00
Legal Fees 0.00
Misc. Fees & Expenses Paid by/to Servicer 0.00
Interest Paid to Servicer on Outstanding
Advances 0.00
ASER Interest Advance Reduction 0.00
Interest Not Advanced (Current Period) 0.00
Recoup of Prior Advances by Servicer 0.00
Servicing Fees Paid Servicer on Loans
Not Advanced 0.00
Misc. Fees & Expenses Paid by Trust 0.00
Shortfall Due to Rate Modification 0.00
Other Interest Loss 0.00
-------
Total Shortfall Allocated to the Bonds 0.00
=======
--------------------------------------------------------------------------------
Excess Allocated to the Bonds:
--------------------------------------------------------------------------------
Other Interest Proceeds Due the Bonds 0.00
Prepayment Interest Excess Due the Bonds 0.00
Interest Income 0.00
Yield Maintenance Penalties Due the Bonds 0.00
Prepayment Penalties Due the Bonds 0.00
Recovered ASER Interest Due the Bonds 0.00
Recovered Interest Due the Bonds 0.00
ARD Excess Interest 0.00
------
Total Excess Allocated to the Bonds 0.00
------
--------------------------------------------------------------------------------
Aggregate Interest Adjustment Allocated to the Bonds
--------------------------------------------------------------------------------
Total Excess Allocated to the Bonds 0.00
Less Total Shortfall Allocated to the Bonds 0.00
-------
Total Interest Adjustment to the Bonds 0.00
=======
Page 4 of 23
Banc of America Commercial Mortgage Inc.
Commercial Mortgage Pass-Through Certificates
Series 2007-5
[LOGO] LaSalle Bank
ABN AMRO Statement Date: 10-Jan-08
Payment Date: 10-Jan-08
Prior Payment: N/A
Next Payment: 11-Feb-08
Record Date: 31-Dec-07
ABN AMRO Acct:
Bond Interest Reconciliation Detail
Accrual Opening Pass-Through Accrued Total Total Distributable Interest Current
Class Balance Rate Certificate Interest Interest Certificate Payment Period
------------------- Interest Additions Deductions Interest Amount Shortfall
Recovery
Method Days
------------------------------------------------------------------------------------------------------------------------------------
Remaining Credit
Class Outstanding Support
Interest
Shorfalls ---------------------------
Original Current (1)
-----------------------------------------------------
(1) Determined as follows: (A) the ending balance of all the classes less (B)
the sum of (i) the ending balance of the class and (ii) the ending balance of
all classes which are not subordinate to the class divided by (A).
Page 5 of 23
Banc of America Commercial Mortgage Inc.
Commercial Mortgage Pass-Through Certificates
Series 2007-5
[LOGO] LaSalle Bank
ABN AMRO Statement Date: 10-Jan-08
Payment Date: 10-Jan-08
Prior Payment: N/A
Next Payment: 11-Feb-08
Record Date: 31-Dec-07
ABN AMRO Acct:
Bond Interest Reconciliation Detail
---------------------------------------------------------------------------------------------------------------------------
Additions
Prior Current ------------------------------------------------------------------------------
Class Interest Interest Interest
Due Date Due Date Prior Interest Accrual Prepayment Yield Other
Shortfall Due on Prior Premiums Maintenance Interest
Shortfall Proceeds (1)
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------
Deductions
------------------------------------------------------
Distributable Interest
Class Certificate Payment
Allocable Deferred & Interest Interest Amount
PPIS Accretion Loss Expense
Interest
---------------------------------------------------------------------------------------
(1) Other Interest Proceeds are additional interest amounts specifically
allocated to the bond(s) and used in determining the Bondholder's Distributable
Interest.
Page 6 of 23
Banc of America Commercial Mortgage Inc.
Commercial Mortgage Pass-Through Certificates
Series 2007-5
[LOGO] LaSalle Bank
ABN AMRO Statement Date: 10-Jan-08
Payment Date: 10-Jan-08
Prior Payment: N/A
Next Payment: 11-Feb-08
Record Date: 31-Dec-07
ABN AMRO Acct:
Rating Information
Original Ratings Rating Change/Change Date(1)
---------------- ------------------------------------------------- --------------------------------------------------
Class CUSIP Fitch Xxxxx'x S&P Fitch Xxxxx'x S&P
---------------- ------------------------------------------------- --------------------------------------------------
NR - Designates that the class was not rated by the rating agency.
(1) Changed ratings provided on this report are based on information provided by
the applicable rating agency via electronic transmission. It shall be understood
that this transmission will generally have been provided to LaSalle within 30
days of the payment date listed on this statement. Because ratings may have
changed during the 30 day window, or may not be being provided by the rating
agency in an electronic format and therefore not being updated on this report,
LaSalle recommends that investors obtain current rating information directly
from the rating agency.
Page 7 of 23
Banc of America Commercial Mortgage Inc.
Commercial Mortgage Pass-Through Certificates
Series 2007-5
[LOGO] LaSalle Bank
ABN AMRO Statement Date: 10-Jan-08
Payment Date: 10-Jan-08
Prior Payment: N/A
Next Payment: 11-Feb-08
Record Date: 31-Dec-07
ABN AMRO Acct:
Asset-Backed Facts ~ 15 Month Historical Loan Status Summary
--------------------------------------------------------------------------------------------------------------
Delinquency Aging Categories
------------------------------------------------------------------------------------------------
Delinq 1 Month Delinq 2 Months Delinq 3+ Months Foreclosure REO
Distribution
Date # Balance # Balance # Balance # Balance # Balance
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------
Special Event Categories (1)
------------------------------------------------------------
Modification Specially Serviced Bankruptcy
Distribution
Date # Balance # Balance # Balance
--------------------------------------------------------------------------
(1) Note: Modification, Specially Serviced & Bankruptcy Totals are Included in
the Appropriate Delinquency Aging Category
Page 8 of 23
Banc of America Commercial Mortgage Inc.
Commercial Mortgage Pass-Through Certificates
Series 2007-5
[LOGO] LaSalle Bank
ABN AMRO Statement Date: 10-Jan-08
Payment Date: 10-Jan-08
Prior Payment: N/A
Next Payment: 11-Feb-08
Record Date: 31-Dec-07
ABN AMRO Acct:
Delinquent Loan Detail
------------------------------------------------------------------------------------------------------------------------------------
Paid Outstanding Out. Property Loan Status Special
Disclosure Thru Current P&I P&I Protection Code (1) Servicer Foreclosure Bankruptcy REO
Control # Date Advance Advances** Advances Transfer Date Date Date Date
------------------------------------------------------------------------------------------------------------------------------------
Total
------------------------------------------------------------------------------------------------------------------------------------
(1) Legend:
A. In Grace Period 1. Delinq. 1 month 3. Delinquent 3 + months 5. Non Performing Matured Balloon 9. REO
B. Late Payment but < 1 month delinq. 2. Delinq. 2 months 4. Performing Matured Balloon 7. Foreclosure
** Outstanding P&I Advances include the current period P&I Advances and may include Servicer Advances.
Page 9 of 23
Banc of America Commercial Mortgage Inc.
Commercial Mortgage Pass-Through Certificates
Series 2007-5
[LOGO] LaSalle Bank
ABN AMRO Statement Date: 10-Jan-08
Payment Date: 10-Jan-08
Prior Payment: N/A
Next Payment: 11-Feb-08
Record Date: 31-Dec-07
ABN AMRO Acct:
Asset-Backed Facts ~ 15 Month Historial Payoff/Loss Summary
------------ ---------------- ------------------------ ------------------ ---------------------- -----------------
Ending Pool (1) Payoffs (2) Penalties Appraisal Reduct. (2) Liquidations (2)
Distribution
Date # Balance # Balance # Amount # Balance # Balance
------------ ---------------- ------------------------ ------------------ ---------------------- -----------------
------------- -------------------- ----------------- -----------------
Realized Losses (2) Remaining Term Curr Weighted Avg.
Distribution
Date # Amount Life Coupon Remit
------------- -------------------- ----------------- -----------------
Page 10 of 23
Banc of America Commercial Mortgage Inc.
Commercial Mortgage Pass-Through Certificates
Series 2007-5
[LOGO] LaSalle Bank
ABN AMRO Statement Date: 10-Jan-08
Payment Date: 10-Jan-08
Prior Payment: N/A
Next Payment: 11-Feb-08
Record Date: 31-Dec-07
ABN AMRO Acct:
Historical Collateral Level Repayment Report
---------------------- ------------------------------------------ ---------------------- -------------------------
Disclosure Payoff Initial Payoff Penalty Prepayment Maturity Property Geographic
Control # Period Balance Type Amount Amount Date Date Type Location
---------------------- ------------------------------------------ ---------------------- -------------------------
-------------------
Current
Cumulative
-------------------
Page 11 of 23
Banc of America Commercial Mortgage Inc.
Commercial Mortgage Pass-Through Certificates
Series 2007-5
[LOGO] LaSalle Bank
ABN AMRO Statement Date: 10-Jan-08
Payment Date: 10-Jan-08
Prior Payment: N/A
Next Payment: 11-Feb-08
Record Date: 31-Dec-07
ABN AMRO Acct:
Mortgage Loan Characteristics
Distribution of Principal Balances
----------------- ----------------------------------- ---------------------------
Weighted Average
Current Scheduled # of Scheduled % of ---------------------------
Balance Loans Balance Balance Term Coupon PFY DSCR
----------------- ----------------------------------- ---------------------------
----------------- ----------------------------------- ---------------------------
0 0 0.00%
----------------- ----------------------------------- ---------------------------
Average Schedule Balance 0
Maximum Schedule Balance
Minimum Schedule Balance
Distribution of Remaining Term (Fully Amortizing)
---------------- ------------------------------------------ ----------------------------
Weighted Average
Fully Amortizing # of Scheduled % of ----------------------------
Mortgage Loans Loans Balance Balance Term Coupon PFY DSCR
---------------- ------------------------------------------ ----------------------------
---------------- ------------------------------------------ ----------------------------
0 0 0.00%
---------------- ------------------------------------------ ----------------------------
Distribution of Mortgage Interest Rates
---------------- --------------------------------- ---------------------------
Weighted Average
Current Mortgage # of Scheduled % of ---------------------------
Interest Rate Loans Balance Balance Term Coupon PFY DSCR
-----------------------------------------------------------------------------------
-----------------------------------------------------------------------------------
0 0 0.00%
-----------------------------------------------------------------------------------
Minimum Mortgage Interest Rate
Maximum Mortgage Interest Rate
Distribution of Remaining Term (Balloon)
---------------- ------------------------------------------- --------------------------
Weighted Average
Balloon # of Scheduled % of --------------------------
Mortgage Loans Loans Balance Balance Term Coupon PFY DSCR
---------------- ------------------------------------------- --------------------------
---------------- ------------------------------------------ ----------------------------
0 0 0.00%
---------------- ------------------------------------------ ----------------------------
Page 12 of 23
Banc of America Commercial Mortgage Inc.
Commercial Mortgage Pass-Through Certificates
Series 2007-5
[LOGO] LaSalle Bank
ABN AMRO Statement Date: 10-Jan-08
Payment Date: 10-Jan-08
Prior Payment: N/A
Next Payment: 11-Feb-08
Record Date: 31-Dec-07
ABN AMRO Acct:
Mortgage Loan Characteristics
Distribution of DSCR (PFY)
---------------- -------------------------------- --------------------------
Debt Service # of Scheduled % of
Coverage Ratio Loans Balance Balance WAMM WAC PFY DSCR
---------------- -------------------------------- --------------------------
---------------- -------------------------------- --------------------------
0 0 0.00%
---------------- -------------------------------- --------------------------
Maximum DSCR 0.000
Minimum DSCR 0.000
Distribution of DSCR (Cutoff)
---------------- ------------------------------ --------------------------
Debt Service # of Scheduled % of
Coverage Ratio Loans Balance Balance WAMM WAC PFY DSCR
---------------- ------------------------------ --------------------------
---------------- ------------------------------ --------------------------
0 0 0.00%
---------------- ------------------------------ --------------------------
Maximum DSCR 0.00
Minimum DSCR 0.00
Geographic Distribution
---------------- ---------------------------------------- -------------------------
Geographic # of Scheduled % of
Location Loans Balance Balance WAMM WAC PFY DSCR
---------------- ---------------------------------------- -------------------------
---------------- ---------------------------------------- -------------------------
0 0 0.00%
---------------- ---------------------------------------- -------------------------
Page 13 of 23
Banc of America Commercial Mortgage Inc.
Commercial Mortgage Pass-Through Certificates
Series 2007-5
[LOGO] LaSalle Bank
ABN AMRO Statement Date: 10-Jan-08
Payment Date: 10-Jan-08
Prior Payment: N/A
Next Payment: 11-Feb-08
Record Date: 31-Dec-07
ABN AMRO Acct:
Mortage Loan Characteristics
Distribution of Property Types
---------------- -------------------------------------- ------------------------
Property Types # of Scheduled % of
Loans Balance Balance WAMM WAC PFY DSCR
---------------- -------------------------------------- ------------------------
---------------- -------------------------------------- ------------------------
0 0 0.00%
---------------- -------------------------------------- ------------------------
Distribution of Loan Seasoning
---------------- -------------------------------------- ----------------------------
# of Scheduled % of
Number of Months Loans Balance Balance WAMM WAC PFY DSCR
---------------- -------------------------------------- ----------------------------
---------------- -------------------------------------- ----------------------------
0 0 0.00%
---------------- -------------------------------------- ----------------------------
Distribution of Amortization Type
----------------- -------------------------------------- --------------------------
Amortization Type # of Scheduled % of
Loans Balance Balance WAMM WAC PFY DSCR
----------------- -------------------------------------- --------------------------
----------------- -------------------------------------- --------------------------
0 0 0.00%
----------------- -------------------------------------- --------------------------
Distribution of Year Loans Maturing
---------------- -------------------------------------------- ----------------------------
# of Scheduled % of
Year Loans Balance Balance WAMM WAC PFY DSCR
---------------- -------------------------------------------- ----------------------------
2008 0 0 0.00% 0 0.00% 0.00
2009 0 0 0.00% 0 0.00% 0.00
2010 0 0 0.00% 0 0.00% 0.00
2011 0 0 0.00% 0 0.00% 0.00
2012 0 0 0.00% 0 0.00% 0.00
2013 0 0 0.00% 0 0.00% 0.00
2014 0 0 0.00% 0 0.00% 0.00
2015 0 0 0.00% 0 0.00% 0.00
2016 0 0 0.00% 0 0.00% 0.00
2017 0 0 0.00% 0 0.00% 0.00
2018 0 0 0.00% 0 0.00% 0.00
2019 & Greater 0 0 0.00% 0 0.00% 0.00
---------------- -------------------------------------------- ----------------------------
0 0 0.00%
---------------- -------------------------------------------- ----------------------------
Page 14 of 23
Banc of America Commercial Mortgage Inc.
Commercial Mortgage Pass-Through Certificates
Series 2007-5
[LOGO] LaSalle Bank
ABN AMRO Statement Date: 10-Jan-08
Payment Date: 10-Jan-08
Prior Payment: N/A
Next Payment: 11-Feb-08
Record Date: 31-Dec-07
ABN AMRO Acct:
Loan Level Detail
------------------------------------------------------------------------------------------------------------------------------------
Operating Ending
Disclosure Property Maturity PFY Statement Geo. Principal Note Scheduled Prepayment
Control # Group Type Date DSCR Date Location Balance Rate P&I Amount
------------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------
Loan
Disclosure Prepayment Status
Control # Date Code (1)
-------------------------------------------
* NOI and DSCR, if available and reportable under the terms of the trust agreement, are based on information obtained from the
related borrower, and no other party to the agreement shall be held liable for the accuracy or methodology used to determine such
figures.
(1) Legend:
A. In Grace Period 1. Delinq. 1 month 3. Delinquent 3 + months 5. Non Performing Matured Balloon 9. REO
B. Late Payment but < 1 month delinq. 2. Delinq. 2 months 4. Performing Matured Balloon 7. Foreclosure
Page 15 of 23
Banc of America Commercial Mortgage Inc.
Commercial Mortgage Pass-Through Certificates
Series 2007-5
[LOGO] LaSalle Bank
ABN AMRO Statement Date: 10-Jan-08
Payment Date: 10-Jan-08
Prior Payment: N/A
Next Payment: 11-Feb-08
Record Date: 31-Dec-07
ABN AMRO Acct:
Appraisal Reduction Detail
----------------------- ----------------------------------- --------------- -------------------- --------------
Remaining Term
Disclosure Appraisal Scheduled AR Current P&I ASER Note Maturity --------------
Control# Red. Date Balance Amount Advance Rate Date Life
----------------------- ----------------------------------- --------------- -------------------- --------------
----------------------- -------------------------- ------ ----------------
Appraisal
Disclosure Appraisal Property Geographic ----------------
Control# Red. Date Type Location DSCR Value Date
----------------------- -------------------------- ------- ----------------
Page 16 of 23
Banc of America Commercial Mortgage Inc.
Commercial Mortgage Pass-Through Certificates
Series 2007-5
[LOGO] LaSalle Bank
ABN AMRO Statement Date: 10-Jan-08
Payment Date: 10-Jan-08
Prior Payment: N/A
Next Payment: 11-Feb-08
Record Date: 31-Dec-07
ABN AMRO Acct:
Specially Serviced (Part I) ~ Loan Detail (End of Period)
------------------------ --------- --------------------- ---------- -------- -----------------
Note Rate
Loan Balance Maturity Remaining
Disclosure Servicing Status --------------------- Date -----------------
Control # Xfer Date Code(1) Schedule Actual Life
------------------------ --------- --------------------- ---------- -------- -----------------
------------ -------------- ---------- ------ ------- -----
Disclosure Property Geo. NOI
Control # Type Location NOI DSCR Date
------------ -------------- ---------- ------ ------- -----
(1) Legend:
A. P&I Adv - in Grace Period 1. P&I Adv - delinquent 1 month 3. P&I Adv - delinquent 3 + months
B. P&I Adv - < one month delinq 2. P&I Adv - delinquent 2 months 4. Mat. Balloon/Assumed P&I
A. P&I Adv - in Grace Period 5. Non Performing Mat. Balloon 9. REO
B. P&I Adv - < one month delinq 7. Foreclosure
Page 17 of 23
Banc of America Commercial Mortgage Inc.
Commercial Mortgage Pass-Through Certificates
Series 2007-5
[LOGO] LaSalle Bank
ABN AMRO Statement Date: 10-Jan-08
Payment Date: 10-Jan-08
Prior Payment: N/A
Next Payment: 11-Feb-08
Record Date: 31-Dec-07
ABN AMRO Acct:
Specially Serviced Loan Detail (Part II) ~ Servicer Comments (End of Period)
----------------------------------------- --------------------------------------------------------------------------------------
Disclosure Resolution
Control # Strategy Comments
----------------------------------------- --------------------------------------------------------------------------------------
Page 18 of 23
Banc of America Commercial Mortgage Inc.
Commercial Mortgage Pass-Through Certificates
Series 2007-5
[LOGO] LaSalle Bank
ABN AMRO Statement Date: 10-Jan-08
Payment Date: 10-Jan-08
Prior Payment: N/A
Next Payment: 11-Feb-08
Record Date: 31-Dec-07
ABN AMRO Acct:
Modified Loan Detail
--------------------------------------------------------------------------------- ----------------------------------------------
Ending Cutoff Modified
Disclosure Principal Modification Maturity Maturity Modification
Control # Balance Date Date Date Description
--------------------------------------------------------------------------------- ----------------------------------------------
Modified Loan Detail includes loans whose terms, fees, penalties or payments
have been waived or extended.
Page 19 of 23
Banc of America Commercial Mortgage Inc.
Commercial Mortgage Pass-Through Certificates
Series 2007-5
[LOGO] LaSalle Bank
ABN AMRO Statement Date: 10-Jan-08
Payment Date: 10-Jan-08
Prior Payment: N/A
Next Payment: 11-Feb-08
Record Date: 31-Dec-07
ABN AMRO Acct:
Maturity Extension Summary
Loans which have had their Maturity Dates extended
Number of Loans: 0
Stated Principal Balance outstanding: 0.00
Weighted Average Extension Period: 0
Loans in the process of having their Maturity Dates extended
Number of Loans: 0
Stated Principal Balance outstanding: 0.00
Weighted Average Extension Period: 0
Loans in the process of having their Maturity Dates further extended
Number of Loans: 0
Cutoff Principal Balance: 0.00
Weighted Average Extension Period: 0
Loans paid-off that did experience Maturity Date extensions
Number of Loans: 0
Cutoff Principal Balance: 0.00
Weighted Average Extension Period: 0
Loans paid-off that did not experience Maturity Date extensions
Number of Loans: 0
Cutoff Principal Balance: 0.00
Page 20 of 23
Banc of America Commercial Mortgage Inc.
Commercial Mortgage Pass-Through Certificates
Series 2007-5
[LOGO] LaSalle Bank
ABN AMRO Statement Date: 10-Jan-08
Payment Date: 10-Jan-08
Prior Payment: N/A
Next Payment: 11-Feb-08
Record Date: 31-Dec-07
ABN AMRO Acct:
Realized Loss Detail
------------------------------------------------------------------------------------------------------------------------------------
Beginning Gross Proceeds Aggregate Net
Disclosure Appraisal Appraisal Scheduled Gross as a % of Liquidation Liquidation
Period Control # Date Value Balance Proceeds Sched. Balance Expenses * Proceeds
------------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------
Net Proceeds
as a % of Realized
Period Sched. Balance Loss
---------------------------------------------------
Current Total
Cumulative
Page 21 of 23
Banc of America Commercial Mortgage Inc.
Commercial Mortgage Pass-Through Certificates
Series 2007-5
[LOGO] LaSalle Bank
ABN AMRO Statement Date: 10-Jan-08
Payment Date: 10-Jan-08
Prior Payment: N/A
Next Payment: 11-Feb-08
Record Date: 31-Dec-07
ABN AMRO Acct:
Historical Collateral Level REO Report
------------------ ---------------------------------------------------------------------------------------------
Recent Appraisal
Disclosure REO Property Book Scheduled Appraisal Appraisal Reduction
Control # Date City State Type Value Balance Value Date Amount
------------------ ---------------------------------------------------------------------------------------------
------------------ ------------------------------------------------------------------------------------------
Other
Disclosure REO Date Liquidation Liquidation Revenue Realized
Control # Date Liquidated Proceeds Expenses Recovered Loss Type (*)
------------------ ------------------------------------------------------------------------------------------
Page 22 of 23
Banc of America Commercial Mortgage Inc.
Commercial Mortgage Pass-Through Certificates
Series 2007-5
[LOGO] LaSalle Bank
ABN AMRO Statement Date: 10-Jan-08
Payment Date: 10-Jan-08
Prior Payment: N/A
Next Payment: 11-Feb-08
Record Date: 31-Dec-07
ABN AMRO Acct:
Material Breaches and Mateiral Document Defect Detail
----------------------------------------------------- ----------------------------------------------------------------------
Ending Material
Disclosure Principal Breach
Control # Balance Date Material Breach and Material Document Defect Description
----------------------------------------------------- ----------------------------------------------------------------------
Material breaches of pool asset representation or warranties or transaction
covenants.
Page 23 of 23
EXHIBIT H
FORM OF REQUEST FOR REVIEW
__________________, 20_____
Xxxxx Fargo Bank, N.A.
MAC # X0000-000
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services (CMBS) - Banc of America Commercial Mortgage
Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-5
Re: Pooling and Servicing Agreement dated as of December 1, 2007 (the
"Agreement") by and among Banc of America Commercial Mortgage Inc.,
as Depositor, Bank of America, National Association, as Master
Servicer, Centerline Servicing Inc., as Special Servicer, Xxxxx
Fargo Bank, N.A., as Trustee, and LaSalle Bank National Association,
as Certificate Administrator and REMIC Administrator, for the
Certificateholders of Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-5
--------------------------------------------------------------------
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 2007-5
-------------------------------------------------------------
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 December 1, 2007, by and among Banc of America
Commercial Mortgage Inc., as Depositor, Bank of America, National Association,
as Master Servicer, Centerline Servicing Inc., as Special Servicer, Xxxxx Fargo
Bank, N.A., as Trustee, and LaSalle Bank National Association, as Certificate
Administrator 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 December 1, 2007 (the "Pooling and
Servicing Agreement"), among the Master Servicer, Centerline
Servicing Inc., as Special Servicer, Xxxxx Fargo Bank, N.A., as
Trustee, and LaSalle Bank National Association, as Certificate
Administrator and REMIC Administrator.
Date: _________, 20___
Re: Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates Series 2007-5
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 Certificate Administrator.
(G) The agreements executed in connection with the defeasance
(i) grant control of the pledged securities account to the
Certificate Administrator, (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 2007-5 (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 December 1, 2007 among Banc of America
Commercial Mortgage Inc., as Depositor, Bank of America, National
Association, as Master Servicer, Centerline Servicing Inc., as Special
Servicer, Xxxxx Fargo Bank, N.A., as Trustee, and LaSalle Bank National
Association, as Certificate Administrator and REMIC Administrator;
(2) Based on my knowledge, the Exchange Act Periodic Reports, taken
as a whole, do not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements made, in light
of the circumstances under which such statements were made, not misleading
as of the last day of the period covered by this annual report;
(3) Based on my knowledge, all of the distribution, servicing and
other information required to be provided under Form 10-D for the period
covered by this report is included in Exchange Act Periodic Reports;
(4) Based on my knowledge and the servicer compliance statements
required in this report under Item 1123 of Regulation AB, and except as
disclosed in the Exchange Act Periodic Report, the servicers have
fulfilled their obligations under the Pooling and Servicing Agreement in
all material respects;
(5) All of the reports on assessment of compliance with servicing
criteria for asset-backed securities and their related attestation reports
on assessment of compliance with servicing criteria for asset-backed
securities required to be included in this report in accordance with Item
1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 have been
included as an exhibit to this report, except as otherwise disclosed in
this report. Any material instances of noncompliance described in such
reports have been disclosed in this report on Form 10-K; and
(6) I have disclosed to the Trust's certified public accountants all
significant deficiencies relating to the Master Servicer's or Special
Servicer's compliance with the minimum servicing standards in accordance
with a review conducted in compliance with the Uniform Single Attestation
Program for Mortgage Bankers or similar standard as set forth in the
Pooling and Servicing Agreement.
In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties: ________, as
Special Servicer, ________, as Trustee, _______, as Certificate Administrator
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 2007-5 (the "Trust"),
Commercial Mortgage Pass-Through Certificates, Series 2007-5
I, [identify the certifying individual], a[n] [title] of [identify
name of company] on behalf of [identify name of company], as [Certificate
Administrator/Trustee/Master Servicer/Special Servicer] under that certain
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement") dated as
of December 1, 2007, among Banc of America Commercial Mortgage Inc., as
Depositor, Bank of America, National Association, as Master Servicer, Centerline
Servicing Inc., as Special Servicer, Xxxxx Fargo Bank, N.A., as Trustee, and
LaSalle Bank National Association, as Certificate Administrator 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 Certificate Administrator] [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 Certificate Administrator] [To the best
of my knowledge, the information in the Reports, to the extent prepared by
the [Certificate Administrator] (but not including any information
provided to the [Certificate Administrator] by the [Certificate
Administrator,] Master Servicer or Special Servicer, other than to the
extent that such information has been aggregated or manipulated by
[Certificate Administrator]), 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 Certificate Administrator] [To the best
of my knowledge, the distribution or servicing information required to be
provided to the Certificate Administrator 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 Certificate Administrator 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 2007-5
Re: Information Regarding Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-5
---------------------------------------------------------------
Ladies and Gentlemen:
In connection with the Banc of America Commercial Mortgage Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-5 (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")] [LaSalle Bank National Association, as certificate
administrator (the "Certificate Administrator")], 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
December 1, 2007, by and among the Depositor, the Trustee, the Certificate
Administrator, Bank of America, National Association, as Servicer (the
"Servicer") and Centerline Servicing 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
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Global Securities and Trust Services - Banc of America Commercial Mortgage
Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-5
Re: Transfer of Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-5, Class [ ]
-------------------------------------------------------------------------
Ladies and Gentlemen:
Reference is made to the Pooling and Servicing Agreement, dated as
of December 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"),
Centerline Servicing Inc., as Special Servicer (the "Special Servicer"), Xxxxx
Fargo Bank, N.A., as Trustee (the "Trustee"), and LaSalle Bank National
Association, as Certificate Administrator (the "Certificate Administrator").
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 Certificate Administrator,
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)
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Global Securities and Trust Services - Banc of America Commercial Mortgage
Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-5
Re: Transfer of Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-5, Class [ ]
Reference is hereby made to the Pooling and Servicing Agreement,
dated as of December 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"), Centerline Servicing Inc., as Special Servicer (the "Special
Servicer"), Xxxxx Fargo Bank, N.A., as Trustee (the "Trustee"), and LaSalle Bank
National Association, as Certificate Administrator ("Certificate
Administrator"). 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 Certificate Administrator,
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)
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Global Securities and Trust Services - Banc of America Commercial Mortgage
Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-5
Re: Transfer of Banc of America Commercial Mortgage Inc., Commercial
Mortgage Pass-Through Certificates, Series 2007-5, Class [ ]
----------------------------------------------------------------
Reference is hereby made to the Pooling and Servicing Agreement,
dated as of December 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"), Centerline Servicing Inc., as Special Servicer (the "Special
Servicer"), Xxxxx Fargo Bank, N.A., as Trustee (the "Trustee"), and LaSalle Bank
National Association, as Certificate Administrator (the "Certificate
Administrator"). 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 Certificate Administrator,
the Trustee, the Servicer and the Special Servicer.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated: ____ __, ____
---------------------------
** Insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
EXHIBIT Q
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM REGULATION S GLOBAL
CERTIFICATE TO DOMESTIC GLOBAL CERTIFICATE
(Exchange or transfers pursuant to
Section 5.02(d) of the Pooling and Servicing Agreement)
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Global Securities and Trust Services - Banc of America Commercial Mortgage
Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-5
Re: Transfer of Banc of America Commercial Mortgage Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-5, Class [ ]
-------------------------------------------------------------------------
Reference is hereby made to the Pooling and Servicing Agreement,
dated as of December 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"), Centerline Servicing Inc., as Special Servicer (the "Special
Servicer"), Xxxxx Fargo Bank, N.A., as Trustee (the "Trustee"), and LaSalle Bank
National Association, as Certificate Administrator (the "Certificate
Administrator". Capitalized terms used but not defined herein shall have the
meanings given to them in the Pooling and Servicing Agreement.
This letter relates to US $[__________] aggregate Certificate
Principal Amount of Certificates (the "Certificates") which are held in the form
of the Regulation S Global Certificate (CUSIP No. __________) with [Euroclear]
[Clearstream]* (ISIN No. __________) through the Depository in the name of
[insert name of transferor] (the "Transferor"). The Transferor has requested a
transfer of such beneficial interest in the Certificates for an interest in the
Domestic Global Certificate (CUSIP No. __________).
In connection with such request, and in respect of such
Certificates, the Transferor does hereby certify that such Certificates are
being transferred in accordance with (i) the transfer restrictions set forth in
the Pooling and Servicing Agreement and (ii) Rule 144A under the Securities Act
to a transferee that the Transferor reasonably believes is purchasing the
Certificates for its own account with respect to which the transferee exercises
sole investment discretion and the transferee and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A, in each case in
a transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state or other jurisdiction of the United
States.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Servicer, the
Special Servicer and Banc of America Securities LLC, the Placement Agent of the
offering of the Certificates.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated: ____ __, ____
SCHEDULE I
Mortgage Loan Schedule
Sequence Loan Number Loan Seller Property Name Street Address
------------------------------------------------------------------------------------------------------------------------------------
1 0000000 Bank of America Xxxxxxx Center 000 Xxxx Xxxxxxxxxx Xxxxxx
2 0000000 Bank of America Sawgrass Xxxxx 00000 Xxxx Xxxxxxx Xxxxxxxxx
3 0000000 Bank of America Arundel Xxxxx 0000 Xxxxxxx Xxxxx Xxxxxx
4 0000000 Bank of America Summit Office Campus 000 Xxxxxxxxx Xxxx Xxxxxxx and 000 Xxxxxxxxx
Xxxxxxx Xxxx
5 0000000 Bank of America Xxxxx Xxxxxx Building 4350 La Jolla Xxxxxxx Xxxxx
0 0000000 Xxxx xx Xxxxxxx 000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx
7 0000000 Bank of America Green Oak Village Place 0000 Xxxxxxx Xxxxx Xxxxxxxxx
8 0000000 Bank of America Visconti 0000 Xxxx 0xx Xxxxxx
9 0000000 Bank of America Xxxxxxx Xxxx Xxxxxxxx 00000 Ventura Boulevard
10 0000000 Bank of America 0000 Xxxxxxxxx Xxxxxx 0000 Xxxxxxxxx Xxxxxx Xxxxxxxxx
11 0000000 Bank of America Xxxxxx Xxxxx Shopping Center 0000 Xxxxxxxxx Xxxxxx Xxxxxx
12 0000000 Bank of America West Hartford Portfolio Various
13 0000000 Bank of America 000 Xxxxxxxx Xxxxx 000 Xxxxxxxx Xxxxx
14 0000000 Bank of America Xxxxxx Xxxxxxxx Xxxxxx 0000-0000 Xxxxx Xxxxxx; 0000-0000 Xxxxx
Xxxxxx; 5333-5353 South Laramie
15 0000000 Bank of America Xxxxxxx Commons 0000 Xxxxxxxx Xxxxx
16 0000000 Bank of America Eastern Silverado Center 0000-0000 Xxxxx Xxxxxxx Xxxxxxxxx
17 0000000 Bank of America Xxxx Xxxxxxxx Xxxxxxxx 00000 Xxxxx Xxxx Xxxxxxxx Xxxx
18 Rollup Bank of America CVS Portfolio Various
18.1 0000000 Bank of America CVS Portfolio Louisiana Various
18.2 0000000 Bank of America CVS Portfolio Texas Various
18.3 0000000 Bank of America CVS - Gulfport 0000 00xx Xxxxxx
19 0000000 Bank of America Northampton Village I 000 Xxxxxxx Xxxxx
20 0000000 Bank of America 0000 00xx Xxxxxx 0000 00xx Xxxxxx
21 0000000 Bank of America The Pointe at Bridgeport 0000 Xxxxxxxxx Xxxxx Xxxx Xxxx
22 0000000 Bank of America 000 0xx Xxxxxx 000 0xx Xxxxxx
00 00000 Bank of America Xxxxxx Expressway 0000 Xxxxx Xxxxx Xxxxxx
24 0000000 Bank of America Simply Self Storage Portfolio II Various
25 0000000 Bank of America Cypress I 00000 Xxxxxx Xxxxxx and 0000 Xxxxxxxxx Xxxxxx
26 0000000 Bank of America The Sherwood Corporate Center 15 Xxxxxx Road; 90, 91, 100 and
000 Xxxxx Xxxxx
27 0000000 Bank of America 2404 Wilshire Lofts 0000 Xxxxxxxx Xxxxxxxxx
28 0000000 Bank of America Xxxxx Xxxxx Xxxxxxxxxx 000 Xxxxxx Xxxx
29 0000000 Bank of America Holiday Inn San Antonio 000 Xxxx Xxxxxxx Xxxxxxxxx
30 0000000 Bank of America South Slope 0000 Xxxxxxxx Xxxxx
31 0000000 Bank of America Beacon Hotel 000 Xxxxx Xxxxx
32 0000000 Bank of America North Xxxxxx Center 00000 Xxxxxxxxx Xxxx Xxxx
33 0000000 Bank of America Cincinnati MOB Portfolio Various
34 0000000 Bank of America 0 Xxxxxxxx Xxxx 0 Xxxxxxxx Xxxx
35 0000000 Bank of America Bella Sonoma Apartments II 0000 00xx Xxxxxx Xxxx
36 0000000 Bank of America Xxxxxxxxx Xxxxxxxxx Xxxxxx 0000 Xxxxx Xxx Xxxxxxx Parkway East
37 0000000 Bank of America Richmar Plaza 9555, 9595 and 0000 Xxxxxxx Xxxxxx
38 0000000 Bank of America Xxx Xxxx Retail Center 17937-17947 Interstate Highway 45
39 0000000 Bank of America Stock Building Supply 0000 Xxxxxxxx Xxxxxx Xxxxx
40 0000000 Bank of America Issaquah Highlands Town Center 0000 00xx Xxxxxx Xxxxxxxxx
41 0000000 Bank of America Xxxxxxxxx Crossings 29025 Overland Drive
42 Rollup Bank of America Walgreens CO Portfolio Various
42.1 0000000 Bank of America Walgreens - Ft. Xxxxxxx 0000 Xxxx Xxxxx Xxxx
42.2 0000000 Bank of America Walgreens - Arvada 0000 Xxxxxxxxx Xxxxxxxxx
42.3 0000000 Bank of America Walgreens - Niles 0000 Xxxxxxxxxx Xxxx
42.4 0000000 Bank of America Walgreens - Xxxxx 0000 00xx Xxxxxx
43 0000000 Bank of America 0000 Xxxxxxxx Xxxxx 0000 Xxxxxxxx Xxxxx
44 0000000 Bank of America Midtown Retail 0000 Xxxx 0xx Xxxxxx, 000 Xxxxx Xxxxxxxxxxxx
Boulevard, 000 Xxxxxx Xxxxxx
45 0000000 Bank of America DTI- The Heritage Apartments 0000 0xx Xxxxxx
46 24130 Bank of America Budget Storage Portfolio I Various
47 0000000 Bank of America Gander Mountain Waukesha 0000 Xxxx Xxxxxxxx Xxxxxxxxx
48 0000000 Bank of America Friar's Village Shopping Center 10406, 10410, 10450 and 00000 Xxxxxx Xxxx
49 0000000 Bank of America Xxxxxxx Xxxxx 0000 Xxxx Xxxxxxxx Road
50 0000000 Bank of America Xxxxxxxxx Xxxxx Xxxxxxxxxx 000 Xxxxxx Xxxx
51 0000000 Bank of America Xxxxxx-Xxxxx Xxxx 00000, 10165, 00000 Xxxxxx Xxxxx
52 0000000 Bank of America Del Paso Retail 0000 Xxx Xxxx Xxxx
53 0000000 Bank of America Colonnade at Kings Grant 8520-8532 Pit Stop Court
54 25129 Bank of America Budget Storage Portfolio II Various
55 0000000 Bank of America Superior Self Storage 0000 Xxxxxxxxx Xxxx
56 21902 Bank of America Monroe Medical Office 00000 000xx Xxxxxx Xxxxxxxxx
57 24785 Bank of America Xxxxxxx Xxx - XXX 0000 Xxxxxx Xxxxxxxxx
58 24017 Bank of America Goshen Village Shoppes 0000 Xxxxxxx Xxxx
59 19289 Bank of America Lockaway Storage - Sunnyvale 000 Xxxx Xxxxxxx Xxxxxx
60 0000000 Bank of America Bridgeport Shopping Center 0000 Xxxxxxx Xxxxxxx Xxxx
61 23796 Bank of America Stone Canyon 0000 Xxxx Xxxxxx Xxxxxx
62 0000000 Bank of America Del Sol Inn 0000 Xxxxx Xxxxxx Xxxxxxxxx
63 0000000 Bank of America Rite Aid (Dallas) - Shavertown, PA 000 Xxxxx Xxxxxxxx Xxxxxxx
00 00000 Bank of America Holiday Inn Express - Humble 7014 Xxxx Xxxxxxx Parkway
65 0000000 Bank of America Xxxx Xxxxx Xxxxxxxxxxx 0000-0000 Xxxxxx Xxxxxxxxx
66 18885 Bank of America Pavilion Medical Center-Carolina Beach 0000 Xxxxx Xxxx Xxxx Xxxxxxxxx
67 23368 Bank of America Big Bend Office 910 & 000 Xxxxxxxx Xxxxxx
68 0000000 Bank of America Rite Aid - East Stroudsburg, PA 000 Xxxxx Xxxxxxxxx Xxxxxx
69 0000000 Bank of America Cliffbrook Condominiums 0000 Xxxxxxxxxx Xxxxx
70 21261 Bank of America Xxxxxxxx Xxxxx Xxxxxx Xxxxxx 0000-0000 Xxxxx Xxxxxxxx Avenue
71 0000000 Bank of America Frontier Dental 3820-3828 Xxxxxxxxx Boulevard
72 0000000 Bank of America 0000 Xxxx Xxxxxx 0000 Xxxx Xxxxxx
73 0000000 Bank of America Walgreens - Youngstown 0000 Xxxxxxxxxx Xxxxxx Xxxx
74 0000000 Bank of America Summit Apartments - San Marcos, TX 0000 Xxxxxx Xxxx
75 0000000 Bank of America River Place Office 0000 Xxxxxxx Xxxxxx Xxxxxx
76 0000000 Bank of America Greenbriar Student Housing 000 Xxxx Xxxxx Xxxxxx, 000 Xxxxx Xxxxxx and
000 Xxxxxx Xxxxxx
77 24152 Bank of America Best Western-Greenville 0000 Xxxxxx Xxxx
78 0000000 Bank of America 000 Xxxxxxxxx Xxxxxx 000 Xxxxxxxxx Xxxxxx
79 0000000 Bank of America Xxxxxxxxxxxx Xxxxxxxxxx Xxxxxx 00 Xxxxx Xxxxx Xxxxxx
80 21632 Bank of America Xxxxxxxxxx Xxxxxxx Xxxxx 0000-0000 Xxxxx Xxxx Xxxxxx
81 0000000 Bank of America 0000 Xxxxxxxxx Xxxxxx 0000 XX Xxxxx 112
82 0000000 Bank of America 0000 Xxxxxxxx 0000 Xxxxxxxx
83 00000 Xxxx xx Xxxxxxx Xxxxxxxxxxx Medical Mall 000 Xxxxxx Xxxx
84 0000000 Bank of America Sovereign Bank Building 000 Xxxxxxxx
85 21114 Bank of America XxXxxxxxxxx Xxxxxxx Xxxxxxxx 000, 000 & 000 Xxxxxxxxx Xxxxxx Xxxx
86 0000000 Bank of America Sunbelt Rentals 11002 & 00000 Xxxxxxx Xxxx
87 0000000 Bank of America CVS - Federal Hill 0000 Xxxxx Xxxxxxx Xxxxxx
88 23549 Bank of America PostJones Office 0000 Xxxxx Xxxxx Xxxxxxxxx
89 0000000 Bank of America Silver Creek Apartments 0000 Xxxxx Xxxxx Xxxxxx
90 22216 Bank of America Xxxxx Xxx Xxxx 000 Xxxx 0xx Xxxxxx
91 0000000 Bank of America A-1 Personal Storage 00000 Xxxxxx Xxxx
92 22594 Bank of America 1200 Ashland Office 0000 Xxxxx Xxxxxxx Xxxxxx
93 0000000 Xxxx xx Xxxxxxx Xxxxxxx - Xxxxx 00xx Xxxxxx 16066 Xxxxx 00xx Xxxxxx
00 00000 Bank of America Horsepen Retail Center 0000 Xxxxxxxx Xxxx and 0000 Xxxxxx Xxxx
95 23213 Bank of America Kanis Business Park 1200 & 0000 Xxxxxxxx Xxxx Xxxxx
Total
##
Zip Mortgage Original
Sequence City State Code Rate Amortization Basis Balance
------------------------------------------------------------------------------------------------------------------------------------
1 Xxxxxxx XX 00000 6.245% Actual/360 $144,500,000
2 Xxxxxxx XX 00000 5.820% Actual/360 $132,647,059
3 Xxxxxxx XX 00000 6.140% Actual/360 $128,333,333
0 Xxxx Xxxxxx XX 00000 6.250% Actual/360 $120,000,000
5 Xxx Xxxxx XX 00000 5.605% Actual/360 $99,600,000
6 Xxx Xxxx XX 00000 5.903% Actual/360 $72,000,000
7 Xxxxxxxx XX 00000 5.435% Actual/360 $67,525,000
8 Xxx Xxxxxxx XX 00000 5.574% Actual/360 $64,500,000
0 Xxxxxxx Xxxx XX 00000 6.403% Actual/360 $55,000,000
10 Xxxxxxxxxx XX 00000 6.325% Actual/360 $53,000,000
11 Xxxxxxxx XX 00000 5.555% Actual/360 $41,000,000
00 Xxxxxxxx XX Various 6.019% Actual/360 $37,179,141
13 Xxxx Xxxxxxxxxx XX 00000 5.854% Actual/360 $31,450,000
14 Xxxxxxx XX 00000 6.802% Actual/360 $30,535,188
15 Xxxxxxxx XX 00000 6.334% Actual/360 $29,000,000
16 Xxx Xxxxx XX 00000 6.610% Actual/360 $28,500,000
17 Xxxxxx XX 00000 6.093% Actual/360 $28,250,000
18 Various Various Various $26,500,000
18.1 Various LA Various 5.530% Actual/360 $12,717,500
18.2 Various TX Various 5.530% Actual/360 $12,060,000
18.3 Xxxxxxxx XX 00000 5.530% Actual/360 $1,722,500
19 Xxxxxxx XX 00000 5.592% Actual/360 $25,850,000
20 Xxx Xxxx XX 00000 5.795% Actual/360 $25,500,000
21 Xxxxxx XX 00000 5.694% Actual/360 $25,000,000
22 Xxx Xxxx XX 00000 6.203% Actual/360 $25,000,000
23 Xxx Xxxxxxx XX 00000 5.869% Actual/360 $23,800,000
24 Various Various Various 5.741% Actual/360 $21,376,000
25 Xxxxxxx XX 00000 6.414% Actual/360 $21,000,000
26 Xxxxxxxx XX 00000 6.398% Actual/360 $18,000,000
27 Xxx Xxxxxxx XX 00000 6.284% Actual/360 $17,250,000
28 Xxxxxxx XX 00000 5.450% Actual/360 $17,000,000
29 Xxx Xxxxxxx XX 00000 6.204% Actual/360 $16,248,693
30 Xxxxxxxx XX 00000 5.592% Actual/360 $15,400,000
31 Xxxxx Xxxxx XX 00000 6.541% Actual/360 $14,775,000
32 Xxxxxx XX 00000 6.500% Actual/360 $14,450,000
33 Various OH Various 5.989% Actual/360 $14,290,000
34 Xxxxxxxxx XX 00000 6.651% Actual/360 $14,000,000
35 Xxxx XX 00000 6.205% Actual/360 $13,700,000
36 Xxxxxxx XX 00000 6.465% Actual/360 $13,600,000
37 Xxx Xxxxx XX 00000 6.724% Actual/360 $13,500,000
38 Xxxxxxxxxx XX 00000 6.750% Actual/360 $12,500,000
39 Xxxxxxxxxx XX 00000 5.531% Actual/360 $12,450,000
40 Xxxxxxxx XX 00000 5.836% Actual/360 $12,000,000
41 Xxxxxxxx XX 00000 5.974% Actual/360 $11,850,000
42 Various Various Various $11,600,000
42.1 Ft. Xxxxxxx XX 00000 6.074% Actual/360 $3,800,000
42.2 Xxxxxx XX 00000 6.074% Actual/360 $3,300,000
42.3 Xxxxx XX 00000 6.074% Actual/360 $2,300,000
42.4 Xxxxx XX 00000 6.074% Actual/360 $2,200,000
00 Xxx Xxxxx XX 00000 6.636% Actual/360 $10,900,000
44 Xxxxxxxxx XX 00000 6.246% Actual/360 $10,000,000
45 Xxxxxxx XX 00000 5.610% Actual/360 $10,000,000
46 Various PA Various 6.918% Actual/360 $8,810,000
47 Xxxxxxxx XX 00000 6.528% 30/360 $8,800,000
48 Xxx Xxxxx XX 00000 6.403% Actual/360 $8,700,000
49 Xxxxxxxxxx XX 00000 6.544% Actual/360 $8,472,000
50 Xxxxxxx XX 00000 5.450% Actual/360 $8,000,000
51 Xxxxxxx XX 00000 6.301% Actual/360 $7,500,000
52 Xxxxxxxxxx XX 00000 6.456% Actual/360 $7,400,000
53 Xxxxxxx XX 00000 5.551% Actual/360 $7,342,500
54 Xxxxxxx XX 00000 6.918% Actual/360 $7,050,000
00 Xxxxxxx Xxxx XX 00000 6.912% Actual/360 $7,000,000
56 Xxxxxx XX 00000 5.832% Actual/360 $6,930,000
57 Xxxxxx XX 00000 6.548% Actual/360 $6,750,000
58 Xxxxxxx XX 00000 5.808% Actual/360 $6,300,000
59 Xxxxxxxxx XX 00000 6.655% Actual/360 $6,240,000
60 Xxxxxxxxx XX 00000 6.386% Actual/360 $6,000,000
61 Xxx Xxxxx XX 00000 6.150% Actual/360 $5,000,000
62 Xxxxxxx XX 00000 6.432% Actual/360 $5,000,000
63 Xxxxxxxxxx XX 00000 6.185% Actual/360 $4,800,000
64 Xxxxxx XX 00000 6.920% Actual/360 $4,762,000
65 Xxxxxxxxxx XX 00000 6.519% Actual/360 $4,525,000
66 Xxxxxxxx Xxxxx XX 00000 6.078% Actual/360 $4,500,000
67 Xxxxxx Xxxx XX 00000 5.798% Actual/360 $4,530,000
00 Xxxx Xxxxxxxxxxx XX 00000 5.865% Actual/360 $4,400,000
69 Xxxxxx XX 00000 5.992% Actual/360 $4,344,000
70 Xxxxx XX 00000 6.701% Actual/360 $4,000,000
71 Xxxxxxxx XX 00000 6.925% Actual/360 $3,823,000
00 Xxxx Xxxxxxx XX 00000 6.466% Actual/360 $3,920,000
73 Xxxxx XX 00000 6.376% Actual/360 $3,880,800
74 Xxx Xxxxxx XX 00000 5.828% Actual/360 $3,840,000
75 Xxxxxx XX 00000 6.692% Actual/360 $3,750,000
00 Xxxxxxx Xxxxx XX 00000 6.258% Actual/360 $3,750,000
77 Xxxxxxxxxx XX 00000 6.822% Actual/360 $3,400,000
78 Xxxxxxxx XX 00000 5.613% Actual/360 $3,230,000
79 Xxxxxxxxxxxx XX 00000 6.805% Actual/360 $3,194,000
80 Xxxxxxxx XX 00000 6.480% Actual/360 $3,100,000
00 Xxxx Xxxxxxxxx Xxxxxxx XX 00000 6.546% Actual/360 $3,000,000
00 Xxxxxx XX 00000 6.375% Actual/360 $3,000,000
83 Xxxxxxxxxxx XX 00000 6.570% Actual/360 $2,900,000
84 Xxxxxxx XX 00000 6.722% Actual/360 $2,798,000
85 XxXxxxxxxxx XX 00000 6.696% Actual/360 $2,800,000
86 Xxxxxxxxxxxx XX 00000 6.341% Actual/360 $2,730,000
87 Xxxxxxxxx XX 00000 6.349% Actual/360 $2,700,000
88 Xxx Xxxxx XX 00000 6.770% Actual/360 $2,700,000
89 Xxxxxx XX 00000 6.238% Actual/360 $2,582,983
90 Xxxxxx XX 00000 5.814% Actual/360 $2,260,000
91 Xxxxxxx XX 00000 6.627% Actual/360 $1,949,000
92 Xxxxxxx XX 00000 6.100% Actual/360 $1,920,000
93 Xxxxxxxxxx XX 00000 6.056% Actual/360 $1,800,000
94 Xxxxxxxx XX 00000 6.990% Actual/360 $1,235,000
00 Xxxxxx Xxxx XX 00000 6.402% Actual/360 $1,106,000
##
Cut-off Remaining Term
Date To Stated Maturity Stated Maturity Due Date Monthly
Sequence Balance Months Date Payment
------------------------------------------------------------------------------------------------------------------------------------
1 $144,500,000 115 7/1/2017 First 762,447
2 $132,647,059 79 7/1/2014 First 652,273
3 $128,333,333 80 8/1/2014 First 781,012
4 $120,000,000 117 9/1/2017 First 738,861
5 $99,600,000 118 10/1/2017 First 471,692
6 $72,000,000 174 6/1/2022 First 427,197
7 $67,525,000 109 1/1/2017 First 377,832
8 $64,500,000 50 2/1/2012 First 303,764
9 $55,000,000 120 12/1/2017 First 344,136
10 $53,000,000 124 4/1/2018 First 283,234
11 $41,000,000 120 12/1/2017 First 192,432
12 $37,179,141 51 3/1/2012 First 223,371
13 $31,450,000 54 6/1/2012 First 155,554
14 $30,535,188 60 12/1/2012 First 199,107
15 $29,000,000 116 8/1/2017 First 180,145
16 $28,500,000 118 10/1/2017 First 182,206
17 $28,250,000 118 10/1/2017 First 171,066
18 $26,500,000
18.1 $12,717,500 114 6/1/2017 First 72,448
18.2 $12,060,000 114 6/1/2017 First 68,703
18.3 $1,722,500 114 6/1/2017 First 9,813
19 $25,850,000 113 5/1/2017 First 122,134
20 $25,500,000 118 10/1/2017 First 124,854
21 $25,000,000 117 9/1/2017 First 120,273
22 $24,976,063 119 11/1/2017 First 153,166
23 $23,800,000 118 10/1/2017 First 140,687
24 $21,376,000 113 5/1/2017 First 103,694
25 $21,000,000 119 11/1/2017 First 131,549
26 $18,000,000 119 11/1/2017 First 97,303
27 $17,250,000 120 12/1/2017 First 106,593
28 $16,964,934 118 10/1/2017 First 95,992
29 $16,248,693 115 7/1/2017 First 99,560
30 $15,400,000 113 5/1/2017 First 72,761
31 $14,737,727 117 9/1/2017 First 93,787
32 $14,450,000 118 10/1/2017 First 91,334
33 $14,290,000 80 8/1/2014 First 72,310
34 $14,000,000 118 10/1/2017 First 78,673
35 $13,700,000 119 11/1/2017 First 83,953
36 $13,600,000 60 12/1/2012 First 85,648
37 $13,500,000 118 10/1/2017 First 87,328
38 $12,500,000 121 1/1/2018 First 95,046
39 $12,450,000 113 5/1/2017 First 58,181
40 $12,000,000 115 7/1/2017 First 70,686
41 $11,850,000 117 9/1/2017 First 70,849
42 $11,600,000
42.1 $3,800,000 117 9/1/2017 First 19,501
42.2 $3,300,000 117 9/1/2017 First 16,935
42.3 $2,300,000 117 9/1/2017 First 11,804
42.4 $2,200,000 117 9/1/2017 First 11,290
43 $10,900,000 121 1/1/2018 First 69,873
44 $10,000,000 116 8/1/2017 First 61,546
45 $9,895,171 110 2/1/2017 First 57,471
46 $8,810,000 117 9/1/2017 First 58,129
47 $8,800,000 82 10/1/2014 First 47,872
48 $8,700,000 117 9/1/2017 First 54,436
49 $8,461,905 119 11/1/2017 First 56,296
50 $7,983,498 118 10/1/2017 First 45,172
51 $7,500,000 116 8/1/2017 First 46,428
52 $7,400,000 120 12/1/2017 First 46,559
53 $7,342,500 114 6/1/2017 First 41,925
54 $7,050,000 117 9/1/2017 First 46,516
55 $7,000,000 117 9/1/2017 First 46,156
56 $6,930,000 114 6/1/2017 First 40,803
57 $6,739,111 118 10/1/2017 First 42,878
58 $6,300,000 115 7/1/2017 First 30,916
59 $6,234,527 119 11/1/2017 First 40,079
60 $5,994,455 119 11/1/2017 First 37,475
61 $5,000,000 114 6/1/2017 First 30,461
62 $4,991,713 118 10/1/2017 First 31,380
63 $4,791,582 118 10/1/2017 First 29,352
64 $4,750,955 117 9/1/2017 First 31,426
65 $4,525,000 117 9/1/2017 First 28,658
66 $4,471,720 113 5/1/2017 First 27,206
67 $4,471,226 114 6/1/2017 First 31,929
68 $4,400,000 120 12/1/2017 First 26,000
69 $4,344,000 117 9/1/2017 First 26,022
70 $4,000,000 117 9/1/2017 First 25,814
71 $3,823,000 121 1/1/2018 First 25,242
72 $3,920,000 119 11/1/2017 First 24,688
73 $3,867,698 116 8/1/2017 First 24,214
74 $3,840,000 111 3/1/2017 First 22,600
75 $3,750,000 119 11/1/2017 First 24,177
76 $3,746,447 119 11/1/2017 First 23,109
77 $3,368,231 115 7/1/2017 First 25,998
78 $3,230,000 114 6/1/2017 First 18,569
79 $3,191,280 119 11/1/2017 First 20,833
80 $3,100,000 118 10/1/2017 First 20,893
81 $3,000,000 119 11/1/2017 First 19,053
82 $2,994,962 118 10/1/2017 First 18,716
83 $2,900,000 120 12/1/2017 First 18,464
84 $2,798,000 81 9/1/2014 First 18,096
85 $2,793,173 117 9/1/2017 First 18,060
86 $2,730,000 120 12/1/2017 First 16,970
87 $2,700,000 112 4/1/2017 First 16,799
88 $2,695,866 118 10/1/2017 First 17,548
89 $2,573,984 116 8/1/2017 First 15,884
90 $2,237,267 110 2/1/2017 First 13,281
91 $1,944,175 117 9/1/2017 First 12,482
92 $1,909,593 54 6/1/2012 First 11,635
93 $1,794,959 117 9/1/2017 First 10,857
94 $1,235,000 120 12/1/2017 First 8,721
95 $1,101,448 115 7/1/2017 First 6,920
$1,858,595,584
##
Administrative Cross-Collateralized
Sequence Fee Rate Primary Servicing Fee Rate Master Servicing Fee Rate Ownership Interest Loans
------------------------------------------------------------------------------------------------------------------------------------
1 0.081% 0.060% 0.020% Leasehold No
2 0.031% 0.010% 0.020% Fee No
3 0.071% 0.050% 0.020% Fee No
4 0.081% 0.060% 0.020% Leasehold No
5 0.081% 0.060% 0.020% Fee No
6 0.081% 0.060% 0.020% Fee No
7 0.081% 0.060% 0.020% Fee No
8 0.051% 0.030% 0.020% Fee No
9 0.081% 0.060% 0.020% Fee No
10 0.081% 0.060% 0.020% Leasehold No
11 0.051% 0.030% 0.020% Leasehold No
12 0.051% 0.030% 0.020% Fee No
13 0.051% 0.030% 0.020% Fee No
14 0.051% 0.030% 0.020% Fee No
15 0.051% 0.030% 0.020% Fee No
16 0.051% 0.030% 0.020% Fee No
17 0.051% 0.030% 0.020% Fee No
18 Fee
18.1 0.041% 0.020% 0.020% Fee Yes - BACM 07-5 A
18.2 0.041% 0.020% 0.020% Fee Yes - BACM 07-5 A
18.3 0.041% 0.020% 0.020% Fee Yes - BACM 07-5 A
19 0.051% 0.030% 0.020% Fee No
20 0.051% 0.030% 0.020% Fee No
21 0.071% 0.050% 0.020% Fee No
22 0.051% 0.030% 0.020% Fee No
23 0.051% 0.030% 0.020% Fee No
24 0.051% 0.030% 0.020% Fee No
25 0.051% 0.030% 0.020% Fee No
26 0.051% 0.030% 0.020% Fee No
27 0.051% 0.030% 0.020% Fee No
28 0.051% 0.030% 0.020% Fee No
29 0.051% 0.030% 0.020% Leasehold No
30 0.051% 0.030% 0.020% Fee No
31 0.051% 0.030% 0.020% Fee No
32 0.051% 0.030% 0.020% Fee No
33 0.051% 0.030% 0.020% Leasehold No
34 0.051% 0.030% 0.020% Fee No
35 0.051% 0.030% 0.020% Fee No
36 0.051% 0.030% 0.020% Fee No
37 0.051% 0.030% 0.020% Fee No
38 0.051% 0.030% 0.020% Fee No
39 0.051% 0.030% 0.020% Fee No
40 0.051% 0.030% 0.020% Fee No
41 0.051% 0.030% 0.020% Fee No
42 Fee
42.1 0.051% 0.030% 0.020% Fee Yes - BACM 07-5 B
42.2 0.051% 0.030% 0.020% Fee Yes - BACM 07-5 B
42.3 0.051% 0.030% 0.020% Fee Yes - BACM 07-5 B
42.4 0.051% 0.030% 0.020% Fee Yes - BACM 07-5 B
43 0.051% 0.030% 0.020% Fee No
44 0.051% 0.030% 0.020% Fee No
45 0.051% 0.030% 0.020% Fee No
46 0.041% 0.020% 0.020% Fee No
47 0.051% 0.030% 0.020% Fee No
48 0.051% 0.030% 0.020% Fee No
49 0.051% 0.030% 0.020% Leasehold No
50 0.051% 0.030% 0.020% Fee No
51 0.051% 0.030% 0.020% Fee No
52 0.051% 0.030% 0.020% Fee No
53 0.091% 0.070% 0.020% Fee No
54 0.041% 0.020% 0.020% Fee No
55 0.051% 0.030% 0.020% Fee No
56 0.041% 0.020% 0.020% Fee No
57 0.071% 0.050% 0.020% Fee No
58 0.041% 0.020% 0.020% Fee No
59 0.071% 0.050% 0.020% Fee No
60 0.051% 0.030% 0.020% Fee No
61 0.041% 0.020% 0.020% Fee No
62 0.051% 0.030% 0.020% Fee No
63 0.051% 0.030% 0.020% Fee No
64 0.041% 0.020% 0.020% Fee No
65 0.051% 0.030% 0.020% Fee No
66 0.041% 0.020% 0.020% Fee No
67 0.041% 0.020% 0.020% Fee No
68 0.051% 0.030% 0.020% Fee No
69 0.051% 0.030% 0.020% Fee No
70 0.041% 0.020% 0.020% Fee/Leasehold No
71 0.051% 0.030% 0.020% Fee No
72 0.051% 0.030% 0.020% Fee No
73 0.051% 0.030% 0.020% Fee No
74 0.091% 0.070% 0.020% Fee No
75 0.051% 0.030% 0.020% Fee No
76 0.051% 0.030% 0.020% Fee No
77 0.101% 0.080% 0.020% Fee No
78 0.051% 0.030% 0.020% Fee No
79 0.051% 0.030% 0.020% Fee No
80 0.041% 0.020% 0.020% Fee No
81 0.051% 0.030% 0.020% Fee No
82 0.051% 0.030% 0.020% Fee No
83 0.081% 0.060% 0.020% Fee No
84 0.051% 0.030% 0.020% Fee No
85 0.041% 0.020% 0.020% Fee No
86 0.051% 0.030% 0.020% Fee No
87 0.051% 0.030% 0.020% Fee No
88 0.041% 0.020% 0.020% Fee No
89 0.051% 0.030% 0.020% Fee No
90 0.101% 0.080% 0.020% Fee No
91 0.051% 0.030% 0.020% Fee No
92 0.041% 0.020% 0.020% Fee No
93 0.051% 0.030% 0.020% Fee No
94 0.041% 0.020% 0.020% Fee No
95 0.041% 0.020% 0.020% Fee No
##
Original
Amortization
Sequence (months) ARD Loan Grace Period Loan Group
------------------------------------------------------------------------------------------------------------------------------------
1 0 Interest Only 1
2 0 Interest Only 1
3 360 IO, Balloon 1
4 360 IO, Balloon 1
5 0 Interest Only 1
6 360 IO, Balloon 1
7 360 IO, Balloon 1
8 0 Interest Only 2
9 360 Balloon 1
10 0 Interest Only 1
11 0 Interest Only 1
12 360 IO, Balloon 2
13 0 Interest Only 1
14 360 Balloon 1
15 360 IO, Balloon 2
16 360 IO, Balloon 1
17 360 IO, Balloon 1
18 1
18.1 360 IO, Balloon 1
18.2 360 IO, Balloon 1
18.3 360 IO, Balloon 1
19 0 Interest Only 2
20 0 Interest Only 1
21 0 Interest Only 1
22 360 Balloon 1
23 360 IO, Balloon 1
24 0 Interest Only 1
25 360 IO, Balloon 1
26 0 Interest Only 1
27 360 IO, Balloon 2
28 360 Balloon 2
29 360 IO, Balloon 1
30 0 Interest Only 2
31 360 Balloon 1
32 360 IO, Balloon 1
33 0 Interest Only 1
34 0 Interest Only 1
35 360 IO, Balloon 2
36 360 IO, Balloon 1
37 360 IO, Balloon 1
38 240 Balloon 1
39 0 Interest Only 1
40 360 IO, Balloon 1
41 360 IO, Balloon 1
42 1
42.1 0 Interest Only 1
42.2 0 Interest Only 1
42.3 0 Interest Only 1
42.4 0 Interest Only 1
43 360 Balloon 1
44 360 IO, Balloon 1
45 360 Balloon 2
46 360 IO, Balloon 1
47 0 Yes Interest Only, Hyper Am 1
48 360 IO, Balloon 1
49 316 Balloon 1
50 360 Balloon 2
51 360 IO, Balloon 1
52 360 Balloon 1
53 360 IO, Balloon 1
54 360 IO, Balloon 1
55 360 IO, Balloon 1
56 360 IO, Balloon 1
57 360 Balloon 1
58 0 Interest Only 1
59 360 Balloon 1
60 360 Balloon 1
61 360 IO, Balloon 1
62 360 Balloon 1
63 360 Balloon 1
64 360 Balloon 1
65 360 IO, Balloon 1
66 360 Balloon 1
67 240 Balloon 1
68 360 Balloon 1
69 360 IO, Balloon 2
70 360 IO, Balloon 1
71 360 IO, Balloon 1
72 360 IO, Balloon 1
73 360 Balloon 1
74 360 IO, Balloon 2
75 360 IO, Balloon 1
76 360 Balloon 2
77 240 Balloon 1
78 360 IO, Balloon 2
79 360 Balloon 1
80 300 IO, Balloon 1
81 360 IO, Balloon 1
82 360 Balloon 1
83 360 IO, Balloon 1
84 360 IO, Balloon 1
85 360 Balloon 1
86 360 Balloon 1
87 360 IO, Balloon 1
88 360 Balloon 1
89 360 Balloon 2
90 360 Balloon 2
91 360 Balloon 1
92 360 Balloon 1
93 360 Balloon 1
94 300 Balloon 1
95 360 Balloon 1
SCHEDULE II
Sub-Servicing Agreements in Effect as of the Closing Date
1. Sub-Servicing Agreement, dated as of December 1, 2007 by and
between BANK OF AMERICA, NATIONAL ASSOCIATION, as Master Servicer, and MIDLAND
LOAN SERVICES, INC., as Sub-Servicer.
2. Sub-Servicing Agreement, dated as of December 1, 2007 by and
between BANK OF AMERICA, NATIONAL ASSOCIATION, as Master Servicer, and XXXXXXXX
XXXXXXXX XXXXXX, X.X., as Sub-Servicer.
3. Sub-Servicing Agreement, dated as of December 1, 2007 by and
between BANK OF AMERICA, NATIONAL ASSOCIATION., as Master Servicer, GRANDBRIDGE
REAL ESTATE CAPITAL LLC and FINANCIAL FEDERAL SAVINGS BANK, as Sub-Servicers.
SCHEDULE III
Schedule of Exceptions under Section 2.02(a)
None.
SCHEDULE IV
[Reserved]
SCHEDULE V
Mortgage Loans that Initially Pay Interest Only
Loan Number Property Name Loan Transaction Cut-off Balance Amortization Type
------------------------------------------------------------------------------------------------------------------------------------
3406454 Xxxxxxx Center BACM 07-5 144,500,000 Interest Only
3407000 Sawgrass Xxxxx BACM 07-5 132,647,059 Interest Only
3406564 Xxxxx Xxxxxx Building BACM 07-5 99,600,000 Interest Only
3400666 Visconti BACM 07-5 64,500,000 Interest Only
3407789 0000 Xxxxxxxxx Xxxxxx BACM 07-5 53,000,000 Interest Only
3404603 Xxxxxx Xxxxx Shopping Center BACM 07-5 41,000,000 Interest Only
3406633 000 Xxxxxxxx Xxxxx BACM 07-5 31,450,000 Interest Only
3406008 Northampton Village I BACM 07-5 25,850,000 Interest Only
3404906 0000 00xx Xxxxxx BACM 07-5 25,500,000 Interest Only
3403431 The Pointe at Bridgeport BACM 07-5 25,000,000 Interest Only
3406190 Simply Self Storage Portfolio II BACM 07-5 21,376,000 Interest Only
3408015 The Sherwood Corporate Center BACM 07-5 18,000,000 Interest Only
3406011 South Slope BACM 07-5 15,400,000 Interest Only
3406143 Cincinnati MOB Portfolio BACM 07-5 14,290,000 Interest Only
3407315 0 Xxxxxxxx Xxxx XXXX 00-0 14,000,000 Interest Only
3405991 Stock Building Supply BACM 07-5 12,450,000 Interest Only
24017 Goshen Village Shoppes BACM 07-5 6,300,000 Interest Only
3408177 Walgreens - Ft. Xxxxxxx BACM 07-5 3,800,000 Interest Only
3407481 Walgreens - Arvada BACM 07-5 3,300,000 Interest Only
3408175 Walgreens - Niles BACM 07-5 2,300,000 Interest Only
3408176 Walgreens - Xxxxx BACM 07-5 2,200,000 Interest Only
3407919 Gander Mountain Waukesha BACM 07-5 8,800,000 Interest Only, Hyper Am
3407568 Arundel Xxxxx BACM 07-5 128,333,333 IO, Balloon
3407712 Summit Office Campus BACM 07-5 120,000,000 IO, Balloon
3406741 000 Xxxxx Xxxxxx BACM 07-5 72,000,000 IO, Balloon
3403670 Xxxxx Xxx Xxxxxxx Xxxxx XXXX 00-0 67,525,000 IO, Balloon
3404396 West Hartford Portfolio BACM 07-5 37,179,141 IO, Balloon
3405433 Xxxxxxx Commons BACM 07-5 29,000,000 IO, Balloon
3405207 Eastern Silverado Center BACM 07-5 28,500,000 IO, Balloon
3402394 Lake Pleasant Pavilion BACM 07-5 28,250,000 IO, Balloon
59739 Xxxxxx Expressway BACM 07-5 23,800,000 IO, Balloon
3405620 Cypress I BACM 07-5 21,000,000 IO, Balloon
3405735 2404 Wilshire Lofts BACM 07-5 17,250,000 IO, Balloon
3405632 Holiday Inn San Antonio BACM 07-5 16,248,693 IO, Balloon
3407104 North Xxxxxx Center BACM 07-5 14,450,000 IO, Balloon
3402986 Xxxxx Xxxxxx Xxxxxxxxxx XX XXXX 00-0 13,700,000 IO, Balloon
3407581 Northbelt Corporate Center BACM 07-5 13,600,000 IO, Balloon
3405205 Richmar Plaza BACM 07-5 13,500,000 IO, Balloon
3406312 CVS Portfolio Louisiana BACM 07-5 12,717,500 IO, Balloon
3405982 CVS Portfolio Texas BACM 07-5 12,060,000 IO, Balloon
3404354 Issaquah Highlands Town Center BACM 07-5 12,000,000 IO, Balloon
3401239 Xxxxxxxxx Crossings BACM 07-5 11,850,000 IO, Balloon
3406690 Midtown Retail BACM 07-5 10,000,000 IO, Balloon
24130 Budget Storage Portfolio I BACM 07-5 8,810,000 IO, Balloon
3407751 Friar's Village Shopping Center BACM 07-5 8,700,000 IO, Balloon
3407545 Harwin-Point West BACM 07-5 7,500,000 IO, Balloon
3405948 Colonnade at Kings Grant BACM 07-5 7,342,500 IO, Balloon
25129 Budget Storage Portfolio II BACM 07-5 7,050,000 IO, Balloon
3406736 Superior Self Storage BACM 07-5 7,000,000 IO, Balloon
21902 Monroe Medical Office BACM 07-5 6,930,000 IO, Balloon
23796 Stone Canyon BACM 07-5 5,000,000 IO, Balloon
3408543 Xxxx Xxxxx Xxxxxxxxxxx XXXX 00-0 4,525,000 IO, Balloon
3404896 Cliffbrook Condominiums BACM 07-5 4,344,000 IO, Balloon
00000 Xxxxxxxx Xxxxx Retail Center BACM 07-5 4,000,000 IO, Balloon
3407946 0000 Xxxx Xxxxxx BACM 07-5 3,920,000 IO, Balloon
3405234 Summit Apartments - San Marcos, TX BACM 07-5 3,840,000 IO, Balloon
3409088 Frontier Dental BACM 07-5 3,823,000 IO, Balloon
3409024 River Place Office BACM 07-5 3,750,000 IO, Balloon
3406099 000 Xxxxxxxxx Xxxxxx BACM 07-5 3,230,000 IO, Balloon
21632 University Gateway North BACM 07-5 3,100,000 IO, Balloon
3407968 1010 Executive Center BACM 07-5 3,000,000 IO, Balloon
00000 Xxxxxxxxxxx Xxxxxxx Xxxx BACM 07-5 2,900,000 IO, Balloon
3407883 Xxxxxxxxx Xxxx Xxxxxxxx XXXX 00-0 2,798,000 IO, Balloon
3408238 CVS - Federal Hill BACM 07-5 2,700,000 IO, Balloon
3406313 CVS - Gulfport BACM 07-5 1,722,500 IO, Balloon
Loan Number IO Period Loan Group % of Loan Group % of Pool
-------------------------------------------------------------
3406454 120 1 9.0% 7.8%
3407000 84 1 8.3% 7.1%
3406564 126 1 6.2% 5.4%
3400666 60 2 25.0% 3.5%
3407789 125 1 3.3% 2.9%
3404603 120 1 2.6% 2.2%
3406633 60 1 2.0% 1.7%
3406008 120 2 10.0% 1.4%
3404906 120 1 1.6% 1.4%
3403431 120 1 1.6% 1.3%
3406190 120 1 1.3% 1.2%
3408015 120 1 1.1% 1.0%
3406011 120 2 6.0% 0.8%
3406143 84 1 0.9% 0.8%
3407315 120 1 0.9% 0.8%
3405991 120 1 0.8% 0.7%
24017 120 1 0.4% 0.3%
3408177 120 1 0.2% 0.2%
3407481 120 1 0.2% 0.2%
3408175 120 1 0.1% 0.1%
3408176 120 1 0.1% 0.1%
3407919 84 1 0.5% 0.5%
3407568 36 1 8.0% 6.9%
3407712 60 1 7.5% 6.5%
3406741 60 1 4.5% 3.9%
3403670 60 1 4.2% 3.6%
3404396 24 2 14.4% 2.0%
3405433 60 2 11.3% 1.6%
3405207 24 1 1.8% 1.5%
3402394 60 1 1.8% 1.5%
59739 36 1 1.5% 1.3%
3405620 60 1 1.3% 1.1%
3405735 60 2 6.7% 0.9%
3405632 24 1 1.0% 0.9%
3407104 24 1 0.9% 0.8%
3402986 36 2 5.3% 0.7%
3407581 12 1 0.8% 0.7%
3405205 24 1 0.8% 0.7%
3406312 72 1 0.8% 0.7%
3405982 72 1 0.8% 0.6%
3404354 36 1 0.7% 0.6%
3401239 36 1 0.7% 0.6%
3406690 24 1 0.6% 0.5%
24130 36 1 0.6% 0.5%
3407751 60 1 0.5% 0.5%
3407545 36 1 0.5% 0.4%
3405948 60 1 0.5% 0.4%
25129 36 1 0.4% 0.4%
3406736 60 1 0.4% 0.4%
21902 36 1 0.4% 0.4%
23796 60 1 0.3% 0.3%
3408543 36 1 0.3% 0.2%
3404896 36 2 1.7% 0.2%
21261 60 1 0.2% 0.2%
3407946 36 1 0.2% 0.2%
3405234 36 2 1.5% 0.2%
3409088 7 1 0.2% 0.2%
3409024 24 1 0.2% 0.2%
3406099 36 2 1.3% 0.2%
21632 36 1 0.2% 0.2%
3407968 36 1 0.2% 0.2%
19364 24 1 0.2% 0.2%
3407883 36 1 0.2% 0.2%
3408238 60 1 0.2% 0.1%
3406313 72 1 0.1% 0.1%
SCHEDULE VI
Mortgage Loans Containing Additional Debt
---------------------------------------------------------------------------------------------------------------------------------
Existing Additional
Loan Number Property Name Loan Transaction Cut-off Balance Existing Addition Debt Debt Amount
---------------------------------------------------------------------------------------------------------------------------------
3408543 Xxxx Xxxxx Xxxxxxxxxxx XXXX 00-0 4,525,000 No -
19289 Lockaway Storage - Sunnyvale BACM 07-5 6,234,527 No
3402665 DTI- The Heritage Apartments BACM 07-5 9,895,171 No -
3405205 Richmar Plaza BACM 07-5 13,500,000 No -
3402986 Bella Sonoma Apartments II BACM 07-5 13,700,000 No -
3407315 0 Xxxxxxxx Xxxx BACM 07-5 14,000,000 No -
3406143 Cincinnati MOB Portfolio BACM 07-5 14,290,000 No -
3407104 North Xxxxxx Center BACM 07-5 14,450,000 No -
3406190 Simply Self Storage Portfolio II BACM 07-5 21,376,000 No -
3402195 000 0xx Xxxxxx BACM 07-5 24,976,063 No -
3403431 The Pointe at Bridgeport BACM 07-5 25,000,000 No -
3405207 Eastern Silverado Center BACM 07-5 28,500,000 No -
3406633 000 Xxxxxxxx Xxxxx BACM 07-5 31,450,000 No -
3408214 Xxxxxxx Oaks Marriott BACM 07-5 55,000,000 No -
3400666 Visconti BACM 07-5 64,500,000 No -
3406741 000 Xxxxx Xxxxxx BACM 07-5 72,000,000 No -
3406454 Xxxxxxx Center BACM 07-5 144,500,000 No -
3406564 Xxxxx Xxxxxx Building BACM 07-5 99,600,000 Yes 10,700,000
3407568 Arundel Xxxxx BACM 07-5 128,333,333 Yes 256,666,667
3407000 Sawgrass Xxxxx BACM 07-5 132,647,059 Yes 717,352,941
3406313 CVS - Gulfport BACM 07-5 1,722,500 Yes 1,722,500
24785 Xxxxxxx Inn - DFW BACM 07-5 6,739,111 Yes 250,000
3405982 CVS Portfolio Texas BACM 07-5 12,060,000 Yes 12,060,000
3406312 CVS Portfolio Louisiana BACM 07-5 12,717,500 Yes 12,717,500
3404396 West Hartford Portfolio BACM 07-5 37,179,141 Yes 2,798,430
0000000 Xxxxx Xxx Xxxxxxx Xxxxx BACM 07-5 67,525,000 Yes 7,475,000
3407712 Summit Office Campus BACM 07-5 120,000,000 Yes 20,000,000
------------- ------------------------------------------------------------------ -------------------
Loan Number Exisiting Additional Debt Desecription Future Debt Permitted
------------- --------------------------------------------------------------------------------------
3408543 Yes
19289 Yes
3402665 Yes
3405205 Yes
3402986 Yes
3407315 Yes
3406143 Yes
3407104 Yes
3406190 Yes
3402195 Yes
3403431 Yes
3405207 Yes
3406633 Yes
3408214 Yes
3400666 Yes
3406741 Yes
3406454 Yes
3406564 Note B Yes
Pari Passu Note A-1 $128,333,334; Pari Passu Note
3407568 A-3 $128,333,333 Yes
Pari Passu Note X-0, Xxxx X-0,
Xxxx X-0 and Note A-5
$687,352,941; Subordinate
$30,000,000 Note B-1, Note B-
3407000 2 and Note B-3 Yes
3406313 Pari Passu No
24785 Subordinate Unsecured No
3405982 Pari Passu No
3406312 Pari Passu No
3404396 Note B No
3403670 Note B No
3407712 Mezzanine No
------------- ---------------------------------------------------------------------------------------------------------------
% of % of
Loan Number Future Debt Amount Permitted Future Debt Description Loan Group Loan Group Pool
------------- ---------------------------------------------------------------------------------------------------------------
3408543 LTV <= 80%, DSCR >= 1.10x Mezzanine 1 0.3% 0.2%
19289 LTV <= 80%, DSCR >= 1.20x Subordinate Secured 1 0.4% 0.3%
3402665 LTV <= 80%, DSCR >= 1.20x Mezzanine 2 3.8% 0.5%
3405205 LTV <= 80%, DSCR >= 1.20x Mezzanine 1 0.8% 0.7%
3402986 LTV <= 80%, DSCR >= 1.20x Mezzanine 2 5.3% 0.7%
3407315 LTV <= 75%, DSCR >= 1.25x Mezzanine 1 0.9% 0.8%
3406143 LTV <= 75%, DSCR >= 1.10x Subordinate Secured 1 0.9% 0.8%
3407104 LTV <= 80%, DSCR >= 1.20x Mezzanine 1 0.9% 0.8%
3406190 LTV <= 80%, DSCR >= 1.20x Mezzanine 1 1.3% 1.2%
3402195 LTV <= 70%, DSCR >= 1.30x Mezzanine 1 1.6% 1.3%
3403431 LTV <= 80%, DSCR >= 1.05x Mezzanine 1 1.6% 1.3%
3405207 LTV <= 80%, DSCR >= 1.20x Mezzanine 1 1.8% 1.5%
3406633 LTV <= 85%, DSCR >= 1.15x Mezzanine 1 2.0% 1.7%
3408214 LTV <= 80%, DSCR >= 1.25x Mezzanine 1 3.4% 3.0%
3400666 LTV <= 70%, DSCR >= 1.15x Mezzanine 2 25.0% 3.5%
3406741 LTV <= 75%, DSCR >= 1.20x Mezzanine 1 4.5% 3.9%
3406454 LTV <= 75%, DSCR >= 1.25x Mezzanine 1 9.0% 7.8%
3406564 LTV <= 90%, DSCR >= 1.15x Mezzanine 1 6.2% 5.4%
3407568 LTV <= 80%, DSCR >= 1.20x Mezzanine 1 8.0% 6.9%
3407000 LTV <= 85%, DSCR >= 1.05x Mezzanine 1 8.3% 7.1%
3406313 1 0.1% 0.1%
24785 1 0.4% 0.4%
3405982 1 0.8% 0.6%
3406312 1 0.8% 0.7%
3404396 2 14.4% 2.0%
3403670 1 4.2% 3.6%
3407712 1 7.5% 6.5%
SCHEDULE VII
Schedule of Initial Controlling Holders
(1) The initial Xxxxx Xxxxxx Building Controlling Holder, CBRE Realty Finance
Holdings IV, LLC c/o CBRE Realty Finance, Inc., City Place I - 37th Floor,
185 Asylum Street, Hartford, Connecticut, Attention: J. Xxxxx Xxxxx,
telecopy number: (000) 000-0000.
(2) The initial Green Oak Village Place Controlling Holder, Bank of America,
National Association, 000 Xxxxx Xxxxx Xxxxxx, XX0-000-00-00, Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000, Attention: Xxxxxxx Xxxxx, telecopy number: (704)
386-1094 (with copies to Xxxx Xxxxxxx, Esq., Assistant General Counsel,
Bank of America Corporation, Bank of America Corporate Center, 000 Xxxxx
Xxxxx Xxxxxx (00xx Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 28255), telecopy
number: (000) 000-0000, with copy to: Xxxxx X. XxXxxx, Esq., Cadwalader,
Xxxxxxxxxx & Xxxx LLP, 000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000.
(3) The initial West Hartford Portfolio Controlling Holder, RCG Longview, 0
Xxxx Xxxxx-Xxxxx 000, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxx,
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
-------------------- -------------------
Certificate
Administrator
Trustee
Master Servicer
Special Servicer
Policies and procedures are instituted to monitor any performance or other Primary Servicer
1122(d)(1)(i) triggers and events of default in accordance with the transaction agreements.
-------------------- -------------------
If any material servicing activities are outsourced to third parties, Certificate
policies and procedures are instituted to monitor the third party's Administrator
performance and compliance with such servicing activities. Trustee
Master Servicer
Special Servicer
1122(d)(1)(ii) Primary Servicer
-------------------- -------------------
Any requirements in the transaction agreements to maintain a back-up servicer N/A
1122(d)(1)(iii) for the mortgage loans are maintained.
-------------------- -------------------
A fidelity bond and errors and omissions policy is in effect on the party Certificate
participating in the servicing function throughout the reporting period in Administrator
the amount of coverage required by and otherwise in accordance with the terms Trustee
of the transaction agreements. Master Servicer
Special Servicer
1122(d)(1)(iv) Primary Servicer
-------------------- -------------------
Cash Collection and Administration
-------------------- -------------------
Payments on mortgage loans are deposited into the appropriate custodial bank Certificate
accounts and related bank clearing accounts no more than two business days Administrator
following receipt, or such other number of days specified in the transaction Master Servicer
agreements. Special Servicer
1122(d)(2)(i) Primary Servicer
-------------------- -------------------
Disbursements made via wire transfer on behalf of an obligor or to an Certificate
1122(d)(2)(ii) investor are made only by authorized personnel. Administrator
-------------------- -------------------
Advances of funds or guarantees regarding collections, cash flows or Master Servicer
distributions, and any interest or other fees charged for such advances, are (only with
made, reviewed and approved as specified in the transaction agreements. respect to
transactions for
which the related
transaction
agreements
specifically
require it to
advance property
protection or
payments of
interest and/or
principal)
Special Servicer
1122(d)(2)(iii) Trustee
-------------------- -------------------
The related accounts for the transaction, such as cash reserve accounts or Certificate
accounts established as a form of overcollateralization, are separately Administrator
maintained (e.g., with respect to commingling of cash) as set forth in the Trustee
transaction agreements. Master Servicer
Special Servicer
1122(d)(2)(iv) Primary Servicer
-------------------- -------------------
Each custodial account is maintained at a federally insured depository Certificate
institution as set forth in the transaction agreements. For purposes of this Administrator
criterion, "federally insured depository institution" with respect to a Trustee
foreign financial institution means a foreign financial institution that Master Servicer
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange Act. Special Servicer
1122(d)(2)(v) Primary Servicer
-------------------- -------------------
Unissued checks are safeguarded so as to prevent unauthorized access. Master Servicer
Special Servicer
Certificate
Administrator
Trustee
1122(d)(2)(vi) Primary Servicer
-------------------- -------------------
Reconciliations are prepared on a monthly basis for all asset-backed Certificate
securities related bank accounts, including custodial accounts and related Administrator
bank clearing accounts. These reconciliations are (A) mathematically Trustee
accurate; (B) prepared within 30 calendar days after the bank statement Master Servicer
cutoff date, or such other number of days specified in the transaction Special Servicer
agreements; (C) reviewed and approved by someone other than the person who Primary Servicer
prepared the reconciliation; and (D) contain explanations for reconciling
items. These reconciling items are resolved within 90 calendar days of their
original identification, or such other number of days specified in the
transaction agreements.
1122(d)(2)(vii)
-------------------- -------------------
Investor Remittances and Reporting
-------------------- -------------------
Reports to investors, including those to be filed with the Commission, are Certificate
maintained in accordance with the transaction agreements and applicable Administrator
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
1122(d)(3)(i) mortgage loans serviced by the Servicer.
-------------------- -------------------
Amounts due to investors are allocated and remitted in accordance with Certificate
timeframes, distribution priority and other terms set forth in the Administrator
1122(d)(3)(ii) transaction agreements.
-------------------- -------------------
Disbursements made to an investor are posted within two business days to the Certificate
Servicer's investor records, or such other number of days specified in the Administrator
1122(d)(3)(iii) transaction agreements.
-------------------- -------------------
Amounts remitted to investors per the investor reports agree with cancelled Certificate
1122(d)(3)(iv) checks, or other form of payment, or custodial bank statements. Administrator
-------------------- -------------------
Pool Asset Administration
-------------------- -------------------
Collateral or security on mortgage loans is maintained as required by the Trustee
transaction agreements or related mortgage loan documents. Master Servicer
Special Servicer
1122(d)(4)(i) Primary Servicer
-------------------- -------------------
Mortgage loan and related documents are safeguarded as required by the Trustee
1122(d)(4)(ii) transaction agreements.
-------------------- -------------------
Any additions, removals or substitutions to the asset pool are made, reviewed Trustee
and approved in accordance with any conditions or requirements in the Master Servicer
transaction agreements. Special Servicer
1122(d)(4)(iii) Primary Servicer
-------------------- -------------------
Payments on mortgage loans, including any payoffs, made in accordance with Master Servicer
the related mortgage loan documents are posted to the Servicer's obligor Primary Servicer
records maintained no more than two business days after receipt, or such
other number of days specified in the transaction agreements, and allocated
to principal, interest or other items (e.g., escrow) in accordance with the
1122(d)(4)(iv) related mortgage loan documents.
-------------------- -------------------
The Servicer's records regarding the mortgage loans agree with the Servicer's Master Servicer
records with respect to an obligor's unpaid principal balance. Primary Servicer
1122(d)(4)(v)
-------------------- -------------------
Changes with respect to the terms or status of an obligor's mortgage loans Master Servicer
(e.g., loan modifications or re-agings) are made, reviewed and approved by Special Servicer
authorized personnel in accordance with the transaction agreements and Primary Servicer
related pool asset documents.
1122(d)(4)(vi)
-------------------- -------------------
Loss mitigation or recovery actions (e.g., forbearance plans, modifications Special Servicer
and deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance with the
1122(d)(4)(vii) timeframes or other requirements established by the transaction agreements.
-------------------- -------------------
Records documenting collection efforts are maintained during the period a Master Servicer
mortgage loan is delinquent in accordance with the transaction agreements. (only for the
Such records are maintained on at least a monthly basis, or such other period period prior to a
specified in the transaction agreements, and describe the entity's activities servicing
in monitoring delinquent mortgage loans including, for example, phone calls, transfer event
letters and payment rescheduling plans in cases where delinquency is deemed (as defined in
temporary (e.g., illness or unemployment). the transaction
agreements))
Special Servicer
1122(d)(4)(viii) Primary Servicer
-------------------- -------------------
Adjustments to interest rates or rates of return for mortgage loans with Master Servicer
variable rates are computed based on the related mortgage loan documents. Primary Servicer
1122(d)(4)(ix)
-------------------- -------------------
Regarding any funds held in trust for an obligor (such as escrow accounts): Master Servicer
(A) such funds are analyzed, in accordance with the obligor's mortgage loan Primary Servicer
documents, on at least an annual basis, or such other period specified in the
transaction agreements; (B) interest on such funds is paid, or credited, to
obligors in accordance with applicable mortgage loan documents and state
laws; and (C) such funds are returned to the obligor within 30 calendar days
of full repayment of the related mortgage loans, or such other number of days
1122(d)(4)(x) specified in the transaction agreements.
-------------------- -------------------
Payments made on behalf of an obligor (such as tax or insurance payments) are Master Servicer
made on or before the related penalty or expiration dates, as indicated on Primary Servicer
the appropriate bills or notices for such payments, provided that such
support has been received by the servicer at least 30 calendar days prior to
these dates, or such other number of days specified in the transaction
1122(d)(4)(xi) agreements.
-------------------- -------------------
Any late payment penalties in connection with any payment to be made on Master Servicer
behalf of an obligor are paid from the servicer's funds and not charged to Primary Servicer
the obligor, unless the late payment was due to the obligor's error or
1122(d)(4)(xii) omission.
-------------------- -------------------
Disbursements made on behalf of an obligor are posted within two business Master Servicer
days to the obligor's records maintained by the servicer, or such other Primary Servicer
number of days specified in the transaction agreements.
1122(d)(4)(xiii)
-------------------- -------------------
Delinquencies, charge-offs and uncollectible accounts are recognized and Master Servicer
recorded in accordance with the transaction agreements. Primary Servicer
1122(d)(4)(xiv)
-------------------- -------------------
Any external enhancement or other support, identified in Item 1114(a)(1) N/A
through (3) or Item 1115 of Regulation AB, is maintained as set forth in the
1122(d)(4)(xv) 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
--------------------------------------------------------------------------------
o Master Servicer
Item 1A: Distribution and Pool
Performance Information: o Trustee
o Item 1121(a)(13) of Regulation AB
--------------------------------------------------------------------------------
o Trustee
Item 1B: Distribution and Pool
Performance Information: o Depositor
o Item 1121 (a)(14) of Regulation o Certificate Administrator
AB
--------------------------------------------------------------------------------
o Master Servicer (as to itself)
Item 2: Legal Proceedings:
o Special Servicer (as to itself)
o Item 1117 of Regulation AB (to
the extent material to o Trustee (as to itself)
Certificateholders)
o Certificate Administrator (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
--------------------------------------------------------------------------------
o Depositor
Item 3: Sale of Securities and Use of
Proceeds
--------------------------------------------------------------------------------
o Trustee
Item 4: Defaults Upon Senior
Securities
--------------------------------------------------------------------------------
o Trustee
Item 5: Submission of Matters to a
Vote of Security Holders
--------------------------------------------------------------------------------
o Depositor
Item 6: Significant Obligors of Pool
Assets o Sponsor
o Mortgage Loan Seller
o Master Servicer
o Primary Servicer (as to loans
serviced by it)
--------------------------------------------------------------------------------
o Depositor
Item 7: Significant Enhancement
Provider Information
--------------------------------------------------------------------------------
o Trustee
Item 8: Other Information
(information required to be disclosed o Certificate Administrator
on Form 8-K that was not properly
disclosed) o Any other party responsible for
disclosure items on Form 8-K
--------------------------------------------------------------------------------
o Depositor
Item 9: Exhibits
o Master Servicer
o Trustee
o Certificate Administrator
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
--------------------------------------------------------------------------------
o Depositor
Item 1B: Unresolved Staff Comments
--------------------------------------------------------------------------------
o Trustee
Item 9B: Other Information
(information required to be disclosed o Certificate Administrator
on Form 8-K that was not properly
disclosed) o Any other party responsible for
disclosure items on Form 8-K
--------------------------------------------------------------------------------
o Trustee
Item 15: Exhibits, Financial
Statement Schedules o Certificate Administrator
o Depositor
--------------------------------------------------------------------------------
o Master Servicer (as to itself)
Additional Item:
o Special Servicer (as to itself)
o Trustee (as to itself)
o Certificate Administrator (as to
Disclosure per Item 1117 of Regulation itself)
AB (to the 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
--------------------------------------------------------------------------------
o Master Servicer (as to itself)
Additional Item:
o Special Servicer (as to itself)
(to the extent material to
Disclosure per Item 1119 of Regulation Certificateholders and only as to
AB affiliations under 1119(a))
o Trustee (as to itself)
o Certificate Administrator (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
--------------------------------------------------------------------------------
o Depositor
Additional Item:
o Each Seller as sponsor (as defined
in Regulation AB)
Disclosure per Item 1112(b) of
Regulation AB o Master Servicer
--------------------------------------------------------------------------------
o Depositor
Additional Item:
o Master Servicer
Disclosure per Items 1114(b)(2) and
1115(b) of 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 All parties (only as to the
Definitive Agreement agreements such entity is a party
to or entered into on behalf of
the Trust)
-------------------------------------------------------------------------------
Item 1.02- Termination of a Material All parties (only as to the
Definitive Agreement agreements such entity is a party
to or entered into on behalf of
the Trust)
-------------------------------------------------------------------------------
o Depositor
Item 1.03- Bankruptcy or Receivership
-------------------------------------------------------------------------------
o Depositor
Item 2.04- Triggering Events that
Accelerate or 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
-------------------------------------------------------------------------------
o Depositor
Item 5.03- Amendments of Articles of
Incorporation or Bylaws; Change of
Fiscal Year
-------------------------------------------------------------------------------
o Depositor
Item 6.01- ABS Informational and
Computational Material
-------------------------------------------------------------------------------
o Master Servicer
Item 6.02- Change of Servicer or
Trustee o Special Servicer (as to itself
or a servicer retained by it)
o Primary Servicer
o Trustee
o Certificate Administrator
o Depositor
-------------------------------------------------------------------------------
o Depositor
Item 6.03- Change in Credit
Enhancement or External Support o Trustee
-------------------------------------------------------------------------------
o Certificate Administrator
Item 6.04- Failure to Make a Required
Distribution
-------------------------------------------------------------------------------
o Depositor
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 Master Servicer
o Primary Servicer
-------------------------------------------------------------------------------
SCHEDULE XII
Form of Additional Disclosure Notification
**SEND VIA FAX TO (000) 000-0000 AND VIA OVERNIGHT MAIL TO XXXXX FARGO AND
BANK OF AMERICA AT THE ADDRESSES IMMEDIATELY BELOW**
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Corporate Trust Services (CMBS) - Banc of America Commercial Mortgage
Inc., Commercial Mortgage Pass-Through Certificates, Series 0000-0
Xxxx xx Xxxxxxx Commercial Mortgage Inc.
000 Xxxxx Xxxxx Xxxxxx, XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
RE: **Additional Form [10-D][10-K][8-K] Disclosure** Required
Ladies and Gentlemen:
In accordance with Section [ ] of the pooling and servicing
agreement, dated as of December 1, 2007 (the "Pooling and Servicing Agreement"),
by and among Banc of America Commercial Mortgage Inc. (the "Company"), as
depositor, Bank of America, National Association, as master servicer, Centerline
Servicing Inc., as special servicer, Xxxxx Fargo Bank, N.A., as trustee, and
LaSalle Bank National Association as certificate administrator 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
