EXHIBIT 4.1
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GE COMMERCIAL MORTGAGE CORPORATION,
Depositor
KEYCORP REAL ESTATE CAPITAL MARKETS, INC.,
Servicer No. 1
BANK OF AMERICA, NATIONAL ASSOCIATION,
Servicer No. 2
LNR PARTNERS, INC.,
Special Servicer
and
▇▇▇▇▇ FARGO BANK, N.A.,
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of May 1, 2007
$3,953,465,462
GE Commercial Mortgage Corporation
Commercial Mortgage Pass-Through Certificates
Series 2007-C1
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms................................................
Section 1.02 Certain Calculations.........................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.................................
Section 2.02 Acceptance by Trustee........................................
Section 2.03 Representations, Warranties and Covenants of the
Depositor; Mortgage Loan Sellers' Repurchase or
Substitution of Mortgage Loans for Defects in Mortgage
Files and Breaches of Representations and Warranties........
Section 2.04 Execution of Certificates; Issuance of Uncertificated
Lower-Tier Interests........................................
ARTICLE III
ADMINISTRATION AND
SERVICING OF THE TRUST FUND
Section 3.01 Servicer to Act as Servicer; Special Servicer to Act as
Special Servicer; Administration of the Mortgage Loans......
Section 3.02 Collection of Mortgage Loan Payments.........................
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts..........................................
Section 3.04 The Certificate Account; the Lower-Tier Distribution
Account; the Upper-Tier Distribution Account; the Excess
Liquidation Proceeds Reserve Account; the Interest
Reserve Account; the Floating Rate Accounts and the
Serviced Whole Loan Custodial Accounts......................
Section 3.05 Permitted Withdrawals from the Certificate Account; the
Distribution Account and the Serviced Whole Loan
Custodial Accounts..........................................
Section 3.06 Investment of Funds in the Certificate Account, the
Serviced Whole Loan Custodial Account, the REO Accounts,
the Distribution Account, the Class A-MFL Floating Rate
Account, the Class A-JFL Floating Rate Account and the
Excess Liquidation Proceeds Reserve Account.................
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage.......................................
Section 3.08 Enforcement of Due-On-Sale and Due-On-Encumbrance
Clauses; Assumption Agreements..............................
Section 3.09 Realization Upon Defaulted Mortgage Loans....................
Section 3.10 Trustee to Cooperate; Release of Mortgage Files..............
Section 3.11 Servicing Compensation.......................................
Section 3.12 Inspections; Collection of Financial Statements; Delivery
of Certain Reports..........................................
Section 3.13 Reserved.....................................................
Section 3.14 Reserved.....................................................
Section 3.15 Access to Certain Information................................
Section 3.16 Title to REO Property; REO Accounts..........................
Section 3.17 Management of REO Property...................................
Section 3.18 Sale of Defaulted Mortgage Loans and REO Properties..........
Section 3.19 Additional Obligations of the Servicer.......................
Section 3.20 Modifications, Waivers, Amendments and Consents..............
Section 3.21 Transfer of Servicing Between Servicer and Special
Servicer; Record Keeping; Asset Status Report...............
Section 3.22 Sub-Servicing Agreements.....................................
Section 3.23 Representations, Warranties and Covenants of the Servicers...
Section 3.24 Representations, Warranties and Covenants of the Special
Servicer....................................................
Section 3.25 Interest Reserve Account.....................................
Section 3.26 Reserved.....................................................
Section 3.27 Co-Lender Agreements.........................................
Section 3.28 Certain Matters Relating to the Non-Serviced Mortgage
Loans.......................................................
Section 3.29 Certain Matters Regarding the Purchase of the Mortgage
Loans Included in the Serviced Whole Loans..................
Section 3.30 Certain Matters Regarding the Serviced Companion Loans.......
Section 3.31 Litigation Control...........................................
Section 3.32 Swap Contracts...............................................
Section 3.33 Matters Relating to Certain Mortgage Loans...................
Section 3.34 Certain Powers of the Clarion LaGuardia Airport Hotel
Controlling Holder and The Enclave Directing Holder.........
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions................................................
Section 4.02 Statements to Certificateholders; CMSA Investor Reporting
Package.....................................................
Section 4.03 P&I Advances.................................................
Section 4.04 Allocation of Collateral Support Deficit.....................
Section 4.05 Appraisal Reductions.........................................
Section 4.06 Certificate Deferred Interest................................
Section 4.07 Grantor Trust Reporting......................................
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........................................
ARTICLE VI
THE DEPOSITOR, THE SERVICERS, THE SPECIAL SERVICER AND THE DIRECTING
CERTIFICATEHOLDER
Section 6.01 Liability of the Depositor, the Servicers and the Special
Servicer....................................................
Section 6.02 Merger, Consolidation or Conversion of the Depositor, the
Servicers or the Special Servicer...........................
Section 6.03 Limitation on Liability of the Depositor, the Servicer,
the Special Servicer and Others.............................
Section 6.04 Depositor, Servicer and Special Servicer Not to Resign.......
Section 6.05 Rights of the Depositor in Respect of the Servicers and
the Special Servicer........................................
Section 6.06 Reserved.....................................................
Section 6.07 The Directing Certificateholder..............................
ARTICLE VII
DEFAULT
Section 7.01 Events of Default; Servicer and Special Servicer
Termination.................................................
Section 7.02 Trustee to Act; Appointment of Successor.....................
Section 7.03 Notification to Certificateholders...........................
Section 7.04 Waiver of Events of Default..................................
Section 7.05 Trustee as Maker of Advances.................................
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee............................................
Section 8.02 Certain Matters Affecting the Trustee........................
Section 8.03 Trustee Not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans..............................
Section 8.04 Trustee May Own Certificates.................................
Section 8.05 Fees and Expenses of Trustee; Indemnification of Trustee.....
Section 8.06 Eligibility Requirements for Trustee.........................
Section 8.07 Resignation and Removal of the Trustee.......................
Section 8.08 Successor Trustee............................................
Section 8.09 Merger or Consolidation of Trustee...........................
Section 8.10 Appointment of Co-Trustee or Separate Trustee................
Section 8.11 Appointment of Custodians....................................
Section 8.12 Access to Certain Information................................
Section 8.13 Reserved.....................................................
Section 8.14 Representations and Warranties of the Trustee................
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 PROVISIONS
Section 10.01 REMIC Administration........................................
Section 10.02 Depositor, Servicer and Special Servicer to Cooperate
with Trustee...............................................
Section 10.03 Use of Agents...............................................
ARTICLE XI
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 11.01 Intent of the Parties; Reasonableness.......................
Section 11.02 Notification Requirements and Deliveries in Connection
with Securitization of a Serviced Companion Loan...........
Section 11.03 Information to be Provided by the Servicer and the
Special Servicer...........................................
Section 11.04 Information to be Provided by the Trustee...................
Section 11.05 Filing Obligations..........................................
Section 11.06 Form 10-D Filings...........................................
Section 11.07 Form 10-K Filings...........................................
Section 11.08 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification................................
Section 11.09 Form 8-K Filings............................................
Section 11.10 Form 15 Filing; Incomplete Exchange Act Filings;
Amendments to Exchange Act Reports.........................
Section 11.11 Annual Compliance Statements................................
Section 11.12 Annual Reports on Assessment of Compliance with Servicing
Criteria...................................................
Section 11.13 Annual Independent Public Accountants' Attestation..........
Section 11.14 Exchange Act Reporting and Regulation AB Compliance
Indemnification............................................
Section 11.15 Amendments..................................................
Section 11.16 Exchange Act Report Signatures; Delivery of Notices;
Interpretation of Grace Periods............................
Section 11.17 Termination of the Trustee..................................
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment...................................................
Section 12.02 Recordation of Agreement; Counterparts......................
Section 12.03 Limitation on Rights of Certificateholders and the Holder
of any Serviced Companion Loan.............................
Section 12.04 Governing Law...............................................
Section 12.05 Notices.....................................................
Section 12.06 Severability of Provisions..................................
Section 12.07 Grant of a Security Interest................................
Section 12.08 Successors and Assigns; Beneficiaries.......................
Section 12.09 Article and Section Headings................................
Section 12.10 Notices to the Rating Agencies..............................
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-AB 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 X-P Certificate
Exhibit A-8 Form of Class A-M Certificate
Exhibit A-9 Form of Class A-MFL Certificate
Exhibit A-10 Form of Class A-J Certificate
Exhibit A-11 Form of Class A-JFL Certificate
Exhibit A-12 Form of Class B Certificate
Exhibit A-13 Form of Class C Certificate
Exhibit A-14 Form of Class D Certificate
Exhibit A-15 Form of Class E Certificate
Exhibit A-16 Form of Class F Certificate
Exhibit A-17 Form of Class G Certificate
Exhibit A-18 Form of Class H Certificate
Exhibit A-19 Form of Class J Certificate
Exhibit A-20 Form of Class K Certificate
Exhibit A-21 Form of Class L Certificate
Exhibit A-22 Form of Class M Certificate
Exhibit A-23 Form of Class N Certificate
Exhibit A-24 Form of Class O Certificate
Exhibit A-25 Form of Class P Certificate
Exhibit A-26 Form of Class Q Certificate
Exhibit A-27 Form of Class T Certificate
Exhibit A-28 Form of Class X-C Certificate
Exhibit A-29 Form of Class R Certificate
Exhibit A-30 Form of Class LR Certificate
Exhibit B Mortgage Loan Schedule
Exhibit C Form of Investment Representation Letter
Exhibit D-1 Form of Transfer Affidavit
Exhibit D-2 Form of Transferor Letter
Exhibit E Form of Request for Release
Exhibit F Form of ERISA Representation Letter
Exhibit G Form of Statement to Certificateholders
Exhibit H Form of Omnibus Assignment
Exhibit I Reserved
Exhibit J-1 Form of Confidentiality Agreement
Exhibit J-2 Form of Information Request From Certificateholder or
Certificate Owner
Exhibit J-3 Form of Information Request From Prospective Investor
Exhibit K Form of Investor Certification
Exhibit L Reserved
Exhibit M Reserved
Exhibit N Form of Transfer Certificate for Rule 144A Book-Entry
Certificate to Regulation S Book-Entry Certificate on or
Prior to the Release Date
Exhibit O Form of Transfer Certificate for Rule 144A Book-Entry
Certificate to Regulation S Book-Entry Certificate After
the Release Date
Exhibit P Form of Transfer Certificate for Regulation S Book-Entry
Certificate to Rule 144A Book-Entry Certificate on or Prior
to the Release Date
Exhibit Q Form of Transfer Certificate for Transfers of Regulation S
Book-Entry Certificate on or Prior to the Release Date
Exhibit R-1 Form of Transfer Certificate for Definitive Certificate to
Regulation S Book-Entry Certificate on or Prior to the
Release Date
Exhibit R-2 Form of Transfer Certificate for Definitive Certificate to
Regulation S Book-Entry Certificate After the Release Date
Exhibit S Form of Transfer Certificate for Book-Entry Certificate to
Regulation S Definitive Certificate
Exhibit T Whole Loan Report
Exhibit U-1 Form of Performance Certification
Exhibit U-2 Servicer Form of Performance Certification
Exhibit U-3 Special Servicer Form of Performance Certification
Exhibit U-4 Trustee Form of Performance Certification
Exhibit U-5 Subservicer Form of Performance Certification
Exhibit V-1 Form of Closing Date Certification
Exhibit V-2 Form of Initial Certification
Exhibit W Form of Notice Relating to the Non-Serviced Whole Loan
Exhibit X Form of Notice and Certification Regarding Defeasance of
Mortgage Loan
SCHEDULES
Schedule 1 Computerized Database Information
Schedule 2 Mortgage Loans Containing Additional Debt
Schedule 3 Mortgage Loans which Initially Pay Interest Only
Schedule 4 Mortgage Loans with Environmental Insurance Policies
Schedule 5 Rates to be Used in Determining Class X-C and X-P Pass
Through Rates
Schedule 6 Class A-AB Planned Principal Balance Table
Schedule 7 Additional Form 10-D Disclosure
Schedule 8 Additional Form 10-K Disclosure
Schedule 9 Form 8-K Disclosure Information
Schedule 10 Servicing Criteria to be Addresses in Assessment of
Compliance
Schedule 11 Additional Disclosure Notification
Schedule 12 Mortgage Loans for which a request for the disbursement of
earnouts or holdback amounts shall be submitted to the
Special Servicer
Schedule 13 Loan Seller Sub-Servicers
This Pooling and Servicing Agreement (the "Agreement"), is dated and
effective as of April 1, 2007, among GE COMMERCIAL MORTGAGE CORPORATION, as
Depositor, KEYCORP REAL ESTATE CAPITAL MARKETS INC., as Servicer No. 1, BANK OF
AMERICA, NATIONAL ASSOCIATION, as Servicer No. 2, LNR PARTNERS, INC., as Special
Servicer and ▇▇▇▇▇ FARGO BANK, N.A., as Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell commercial mortgage pass-through
certificates (collectively, the "Certificates"), to be issued hereunder in
multiple classes (each, a "Class"), which in the aggregate will evidence the
entire beneficial ownership interest in the trust fund (the "Trust Fund") to be
created hereunder, the primary assets of which will be a pool of commercial,
multifamily and manufactured housing community mortgage loans. As provided
herein, the Trustee shall elect or shall cause an election to be made to treat
the Trust Fund (exclusive of the Class A-MFL Regular Interest and Class A-JFL
Regular Interest, the Class A-MFL and Class A-JFL Swap Contracts and the Class
A-MFL and Class A-JFL Floating Rate Accounts) for federal income tax purposes as
two separate real estate mortgage investment conduits (the "Lower-Tier REMIC"
and the "Upper-Tier REMIC," as defined below, each, a "REMIC").
As provided herein, the Trustee shall elect or shall cause an
election to be made to treat the Mortgage Loans and certain other related assets
subject to this Agreement as a REMIC for federal income tax purposes, and such
segregated pool of assets will be designated as the "Lower-Tier REMIC." The
Class LR Certificates will represent the sole class of "residual interests" in
the Lower-Tier REMIC for purposes of the REMIC Provisions under federal income
tax law.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of all of the Uncertificated Lower-Tier Interests as a
REMIC for federal income tax purposes, and such segregated pool of assets will
be designated as the "Upper-Tier REMIC." The Class R Certificates will evidence
the sole class of "residual interests" in the Upper-Tier REMIC for purposes of
the REMIC Provisions under federal income tax law. For federal income tax
purposes, each Class of the Regular Certificates will be designated as a
separate "regular interest" in the Upper-Tier REMIC for purposes of the REMIC
Provisions under federal income tax law.
The portion of the Trust Fund consisting of the Class A-MFL Regular
Interest, the Class A-MFL Swap Contract, the Class A-MFL Floating Rate Account
and the proceeds thereof shall be treated as a grantor trust (the "Class A-MFL
Grantor Trust") for federal income tax purposes. The Class A-MFL Certificates
will represent undivided beneficial interest in the Class A-MFL Grantor Trust.
The portion of the Trust Fund consisting of the Class A-JFL Regular Interest,
the Class A-JFL Swap Contract, the Class A-JFL Floating Rate Account and the
proceeds thereof shall be treated as another grantor trust (the "Class A-JFL
Grantor Trust") for federal income tax purposes. The Class A-JFL Certificates
will represent undivided beneficial interest in the Class A-JFL Grantor Trust.
As provided herein, the Trustee shall take all actions necessary to ensure that
the portions of the Trust Fund consisting of the Grantor Trusts will each
maintain its status as a "grantor trust" under federal income tax law and will
not be treated as part of either the Upper-Tier REMIC or Lower-Tier REMIC.
The following table sets forth the designation, the pass-through
rate (the "Pass-Through Rate"), the aggregate initial principal amount (the
"Original Certificate Balance") or Notional Amount ("Original Notional Amount"),
as applicable, and the initial ratings given each Class by the Rating Agencies
(the "Original Ratings") for each Class of Certificates or the Class A-MFL
Regular Interest or Class A-JFL Regular Interest, comprising interests in the
Upper-Tier REMIC created hereunder.
UPPER-TIER REMIC
Pass-Through Rate Original Certificate Original Rating
Class Designation (per annum) Balance or Notional Amount (S&P/▇▇▇▇▇'▇)
----------------------------------------------------------------------------------------------
A-1...........x 3.8840% $68,000,000 AAA/Aaa
A-2............ 5.4170% $479,000,000 AAA/Aaa
A-3............ 5.4810% $185,000,000 AAA/Aaa
A-AB........... 5.4770% $54,898,000 AAA/Aaa
A-4............ 5.5430% $928,800,000 AAA/Aaa
A-1A........... 5.4830% $1,051,727,000 AAA/Aaa
X-P............ 0.4285%(1) 3,861,731,000$(2) AAA/Aaa
X-C............ 0.0469%(4) $3,953,465,462 AAA/AAA
A-M............ 5.6060%(3) $354,346,000 AAA/Aaa
A-MFL Regular
Interest....... 5.5400%(4) $41,000,000 AAA/Aaa
A-J............ 5.6770%(3) $239,453,000 AAA/Aaa
A-JFL Regular
Interest....... 5.6110%(4) $62,000,000 AAA/Aaa
B.............. 5.7460%(3) $39,534,000 AA+/Aa1
C.............. 5.8943%(5) $44,477,000 AA/Aa2
D.............. 5.9333%(5) $39,534,000 AA-/Aa3
E.............. 5.9853%(6) $29,651,000 A+/A1
F.............. 5.9853%(6) $24,710,000 A/A2
G.............. 5.9853%(6) $49,418,999 A-/A3
H.............. 5.9853%(6) $44,476,000 BBB+/Baa1
J.............. 5.9853%(6) $39,535,000 BBB/Baa2
K.............. 5.9853%(6) $54,360,000 BBB-/Baa3
L.............. 5.1800%(3) $9,884,000 BB+/Ba1
M.............. 5.1800%(3) $14,825,000 BB/Ba2
N.............. 5.1800%(3) $9,884,000 BB-/Ba3
O.............. 5.1800%(3) $9,884,000 B+/B1
P.............. 5.1800%(3) $9,883,000 B/B2
Q.............. 5.1800%(3) $14,826,000 B-/B3
T.............. 5.1800%(3) $54,360,462 NR/NR
(1) The Pass-Through Rate for any Distribution Date for the Class X-C and
Class X-P Certificates will be one-twelfth of the weighted average of the
Class X-C Strip Rates and the Class X-P Strip Rates, respectively. The
Pass-Through Rate for the Class X-C and Class X-P Certificates for the
first Distribution Date is approximately 0.0469% and 0.4285% per annum,
respectively
(2) The Class X-C and Class X-P Certificates will not have Certificate
Balances and will not be entitled to receive distributions of principal.
Interest will accrue on the Components of such Classes at the Class X-C
Strip Rate or Class X-P Strip Rate thereof on the Notional Amounts
thereof. The Notional Amount of each Component for any Distribution Date
will be equal to the Lower-Tier Principal Amount of the Related
Uncertificated Lower-Tier Interest for such Distribution Date, which will
be equal to (i) in the case of the Class A-AB, Class A-M, Class A-MFL,
Class A-J, Class A-JFL, Class A-J, Class B, Class C, Class M. Class N,
Class O, Class P, Class Q and Class T Components, the Certificate Balance
of the Related Certificates as of the preceding Distribution Date (after
giving effect to the distribution of principal and allocation of
Collateral Support Deficit on such Distribution Date) or, in the case of
the first Distribution Date, the Cut-off Date, and (ii) in the case of the
Class A-1-1, Class A-1-2, Class A-1-3, Class A-1-4, Class A-2-1, Class
A-2-2, Class A-2-3, Class A-2-4, Class A-2-5, Class A-2-6, Class A-3-1,
Class A-3-2, Class A-4-1, Class A-4-2, Class A-4-3, Class A-4-4, Class
A-4-5, Class A-4-6, Class A-1A-1, Class A-1A-2, Class A-1A-3, Class
A-1A-4, Class A-1A-5, Class A-1A-6, Class A-1A-7, Class A-1A-8, Class
A-1A-9, Class A-1A-10, Class A-1A-11, Class A-1A-12, Class A-1A-13, Class
A-1A-14, Class A-1A-15, Class D-1, Class D-2, Class E-1, Class E-2, Class
E-3, Class F-1, Class F-2, Class G-1, Class G-2, Class G-3, Class ▇-▇,
▇▇▇▇▇ ▇-▇, ▇▇▇▇▇ ▇-▇, Class J-2, Class K-1, Class K-2, Class L-1 and Class
L-2 Components, the respective amounts specified in the definitions
thereof. The original Notional Amount of the Class X-C and Class X-P
Certificates is $3,953,465,462 and $3,861,731,000, respectively.
(3) The Pass-Through Rates applicable to the Class A-M, Class A-J, Class B,
Class L, Class M, Class N, Class O, Class P, Class Q and Class T
Certificates and the Class A-MFL Regular Interest and Class A-JFL Regular
Interest on each Distribution Date will be a per annum rate equal to the
lesser of 5.6060%, 5.6770%, 5.7460%, 5.1800%, 5.1800%, 5.1800%, 5.1800%,
5.1800%, 5.1800%, 5.1800%, 5.5400% and 5.6110%, respectively, and the
Weighted Average Net Mortgage Rate (in each case adjusted, if necessary,
to accrue on the basis of a 360-day year consisting of twelve 30-day
months).
(4) The pass-through rate applicable to the Class A-MFL Certificates on each
distribution date will be a per annum rate equal to LIBOR plus 0.23%;
subject to the provisions of this agreement and the Class A-MFL Swap
Contract, the pass through rate applicable to the Class A-MFL Certificates
may convert to a rate equal to the Pass-Through Rate of the Class A-MFL
Regular Interest. The pass-through rate applicable to the Class A-JFL
Certificates on each distribution date will be a per annum rate equal to
LIBOR plus 0.28%; subject to the provisions of this agreement and the
Class A-JFL Swap Contract, the pass through rate applicable to the Class
A-JFL Certificates may convert to a rate equal to the Pass-Through Rate of
the Class A-JFL Regular Interest.
(5) The Pass-Through Rate for any Distribution Date for Class C and Class D
Certificates will be the Weighted Average Net Mortgage Rate minus 0.091%
and 0.052%, respectively, (adjusted, if necessary, to accrue on the basis
of a 360-day year consisting of twelve 30-day months).
(6) The Pass-Through Rates applicable to the Class E, Class F, Class G, Class
H, Class J and Class K Certificates on each Distribution Date will be a
per annum rate equal to the Weighted Average Net Mortgage Rate (in each
case adjusted, if necessary, to accrue on the basis of a 360-day year
consisting of twelve 30-day months).
(7) The Class R Certificates do not have a Certificate Balance or Notional
Amount, do not bear interest and will not be entitled to distributions of
Yield Maintenance Charges. Any Available Distribution Amount remaining in
the Upper-Tier Distribution Account, after all required distributions
under this Agreement have been made to each other Class of Certificates,
will be distributed to the Holders of the Class R Certificates.
The Class A-1, Class A-2, Class A-3, Class A-AB, Class A-4, Class
A-1A, Class X-P, Class A-M, Class A-J, Class B, Class C, Class D, Class X-C,
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 T Certificates and the Class A-MFL Regular
Interest and Class A-JFL Regular Interest will evidence "regular interests" in
the Upper-Tier REMIC created hereunder. The sole Class of "residual interest" in
the Upper-Tier REMIC created hereunder will be evidenced by the Class R
Certificates.
The following table sets forth the initial principal amount (the
"Original Lower-Tier Principal Amounts") and per annum rates of interest for the
Uncertificated Lower-Tier Interests and the Class LR Certificates:
LOWER-TIER REMIC
Class Original Lower-Tier
Designation Interest Rate Principal Amount
-------------------------------------------------
Class LA-1-1 (1) $2,233,000
Class LA-1-2 (1) $3,058,000
Class LA-1-3 (1) $51,638,000
Class LA-1-4 (1) $11,071,000
Class LA-2-1 (1) $49,049,000
Class LA-2-2 (1) $59,360,000
Class LA-2-3 (1) $73,288,000
Class LA-2-4 (1) $56,512,000
Class LA-2-5 (1) $54,923,000
Class LA-2-6 (1) $185,868,000
Class LA-3-1 (1) $8,247,000
Class LA-3-2 (1) $176,753,000
Class LA-AB (1) $54,898,000
Class LA-4-1 (1) $51,845,000
Class LA-4-2 (1) $41,479,000
Class LA-4-3 (1) $40,383,000
Class LA-4-4 (1) $169,002,000
Class LA-4-5 (1) $36,692,000
Class LA-4-6 (1) $589,399,000
Class LA-1A-1 (1) $548,000
Class LA-1A-2 (1) $677,000
Class LA-1A-3 (1) $18,049,000
Class LA-1A-4 (1) $20,982,000
Class LA-1A-5 (1) $20,437,000
Class LA-1A-6 (1) $28,592,000
Class LA-1A-7 (1) $25,544,000
Class LA-1A-8 (1) $55,406,000
Class LA-1A-9 (1) $20,633,000
Class LA-1A-10 (1) $388,936,000
Class LA-1A-11 (1) $9,676,000
Class LA-1A-12 (1) $8,886,000
Class LA-1A-13 (1) $8,686,000
Class LA-1A-14 (1) $8,453,000
Class LA-1A-15 (1) $436,219,000
Class LA-M (1) $354,346,000
Class LA-MFL (1) $41,000,000
Class LA-J (1) $239,453,000
Class LA-JFL (1) $62,000,000
Class LB (1) $39,534,000
Class LC (1) $44,477,000
Class LD-1 (1) $18,888,000
Class LD-2 (1) $20,646,000
Class LE-1 (1) $
Class LE-2 (1) $22,427,000
Class LE-3 (1) $2,118,000
Class LF-1 (1) $6,621,000
Class LF-2 (1) $18,089,000
Class LG-1 (1) $67,000
Class LG-2 (1) $31,710,000
Class LG-3 (1) $17,641,000
Class LH-1 (1) $9,944,000
Class LH-2 (1) $34,532,000
Class LJ-1 (1) $13,609,000
Class LJ-2 (1) $25,926,000
Class LK-1 (1) $30,875,000
Class LK-2 (1) $23,485,000
Class LL-1 (1) $2,327,000
Class LL-2 (1) $7,557,000
Class LM (1) $14,825,000
Class LN (1) $9,884,000
Class LO (1) $9,884,000
Class LP (1) $9,883,000
Class LQ (1) $14,826,000
Class LT (1) $54,360,462
Class LR (2) N/A
-----------------
(1) The interest rate for each Class of Uncertificated Lower-Tier Interests
shall be the Weighted Average Net Mortgage Rate.
(2) The Class LR Certificates do not have a Certificate Balance or Notional
Amount, do not bear interest and will not be entitled to distributions of
Yield Maintenance Charges. Any Available Distribution Amount remaining in
the Lower-Tier Distribution Account after distributing the Lower-Tier
Distribution Amount shall be distributed to the Holders of the Class LR
Certificates (but only to the extent of the Available Distribution Amount
for such Distribution Date, if any, remaining in the Lower-Tier
Distribution Account).
(3) The Class LA-MFL Uncertificated REMIC I Regular Interest does not
correspond to any Class of Certificates. The Class LA-MFL Uncertificated
REMIC I Regular Interest corresponds to the Class A-MFL Regular Interest.
(4) The Class LA-JFL Uncertificated REMIC I Regular Interest does not
correspond to any Class of Certificates. The Class LA-JFL Uncertificated
REMIC I Regular Interest corresponds to the Class A-JFL Regular Interest.
The Uncertificated Lower-Tier Interests listed above will evidence
"regular interests" in the Lower-Tier REMIC created hereunder. The sole Class of
"residual interest" in the Lower-Tier REMIC created hereunder will be evidenced
by the Class LR Certificates.
As of close of business on the Cut-off Date, the Mortgage Loans had
an aggregate principal balance, after application of all payments of principal
due on or before such date, whether or not received, equal to $3,953,465,462.
In consideration of the mutual agreements herein contained, the
Depositor, each Servicer, the Special Servicer and the Trustee agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, the following capitalized terms, unless the context otherwise
requires, shall have the meanings specified in this Article.
"666 Fifth Avenue A Notes": Collectively, the eight pari passu notes
that comprise the ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Whole Loan.
"666 Fifth Avenue Co-Lender Agreement": That certain intercreditor
and servicing agreement, dated as of January 11, 2007, by and among the holders
of the ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Mortgage Loan and the ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Pari Passu Loans,
in each case, relating to the relative rights of such holders, as the same may
be further amended, modified or supplemented from time to time.
"666 Fifth Avenue Directing Holder": The holders of the ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Mortgage Loan and the ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Pari Passu Loans that collectively
represent a majority of the aggregate unpaid principal balance of the ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Whole Loan (or their designees).
"666 Fifth Avenue Mortgage Loan": With respect to the ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Whole Loan, the two promissory notes, designated as "A-1" and "A-2", made
by the related Mortgagor and secured by the Mortgage on the ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Mortgaged Property in the original principal amount of $249,000,000, which are
included in the Trust and which are pari passu in right of payment to the other
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ A Notes, as provided in the ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Co-Lender
Agreement, as from time to time amended, supplemented, modified or replaced.
"666 Fifth Avenue Mortgaged Property": The property or properties
which secure the ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Whole Loan.
"666 Fifth Avenue Pari Passu Loans": For so long as the ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Mortgage Loan or a successor REO Loan with respect to the ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Mortgage Loan is part of the Mortgage Pool, the other ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ A
Notes. The ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Pari Passu Loans are not included in the Trust.
"666 Fifth Avenue Whole Loan": The ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Mortgage Loan,
together with the ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Pari Passu Loans. References herein to the
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Whole Loan shall be construed to refer to the aggregate
indebtedness under the ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Mortgage Loan and the ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Pari Passu Loans.
"10-K Filing Deadline": As defined in Section 11.07.
"Accrued Certificate Interest": With respect to each Distribution
Date and each Class of Certificates (other than the Residual Certificates) and
the Class A-MFL Regular Interest and Class A-JFL Regular Interest, an amount
equal to interest for the related Interest Accrual Period at the Pass-Through
Rate applicable to such Class of Certificates and the Class A-MFL Regular
Interest and Class A-JFL Regular Interest for such Distribution Date, accrued on
the related Certificate Balance of such Class (or with respect to the Class X
Certificates, the related Notional Amount of the related Class X Certificates)
outstanding immediately prior to such Distribution Date (provided, that for
interest accrual purposes any distributions in reduction of Certificate Balance
or Notional Amount or reductions in Certificate Balance or Notional Amount as a
result of allocations of Collateral Support Deficit on the Distribution Date
occurring in an Interest Accrual Period shall be deemed to have been made on the
first day of such Interest Accrual Period). With respect to any Distribution
Date and the Class X-C or Class X-P Certificates, as applicable, the amount
equal to the sum of the Accrued Component Interest for the related Interest
Accrual Period for all of their respective Components for such Distribution
Date. Except with respect to the Class A-MFL and Class A-JFL Certificates,
Accrued Certificate Interest shall be calculated on the basis of a 360-day year
consisting of twelve 30-day months. Accrued Certificate Interest with respect to
the Class A-MFL and Class A-JFL Certificates shall be calculated on an
Actual/360 Basis; provided, however, that if a Class A-MFL Distribution
Conversion has occurred, Accrued Certificate Interest with respect to the Class
A-MFL Certificates shall be the same as for the Class A-MFL Regular Interest,
and if a Class A-JFL Distribution Conversion has occurred, Accrued Certificate
Interest with respect to the Class A-JFL Certificates shall be the same as for
the Class A-JFL Regular Interest.
"Accrued Component Interest": With respect to each Component of the
Class X-C and Class X-P Certificates for any Distribution Date, one month's
interest at the Class X-C Strip Rate or Class X-P Strip Rate applicable to such
Component for such Distribution Date, accrued on the related Notional Amount of
such Component, outstanding immediately prior to such Distribution Date;
provided that, for interest accrual purposes any distributions in reduction of
Notional Amount or reductions in Notional Amount as a result of allocations of
Collateral Support Deficit on the Distribution Date occurring in an Interest
Accrual Period shall be deemed to have been made on the first day of such
Interest Accrual Period. Accrued Component Interest shall be calculated on the
basis of a 360-day year consisting of twelve 30-day months.
"Accrued Interest From Recoveries": With respect to each
Distribution Date and any Class of Certificates (other than the Class A-MFL,
Class A-JFL, Class X and the Residual Certificates) or the Class A-MFL Regular
Interest or Class A-JFL Regular Interest that had an increase to its Certificate
Balance as a result of a recovery of Nonrecoverable Advances, an amount equal to
interest at the Pass-Through Rate applicable to that Class on the amount of such
increase to its Certificate Balance accrued from the Distribution Date on which
Collateral Support Deficit was allocated to such Class as a result of the
reimbursement of Nonrecoverable Advances from the Trust to, but not including,
the Distribution Date on which the Certificate Balance was so increased.
"Actual/360 Mortgage Loans": The Mortgage Loans indicated as such in
the Mortgage Loan Schedule.
"Additional Debt": With respect to any Mortgage Loan, any debt owed
by the related Mortgagor to a party other than the lender under such Mortgage
Loan as of the Closing Date as set forth on Schedule 2 hereto, as increased or
decreased from time to time pursuant to the terms of the related subordinate
loan documents (including any subordination agreement).
"Additional Form 10-D Disclosure": As defined in Section 11.06.
"Additional Form 10-K Disclosure": As defined in Section 11.07.
"Additional Servicer": Each Affiliate of the Servicer, the Special
Servicer, the Trustee, the Mortgage Loan Sellers or the Underwriters, that
Services any of the Mortgage Loans, and each Person, other than the Special
Servicer, who is not an Affiliate of the Servicer, the Trustee, the Mortgage
Loan Sellers or the Underwriters, who Services 10% or more of the Mortgage Loans
(based on their Stated Principal Balance).
"Administrative Cost Rate": The sum of the Servicing Fee Rate (and,
in the case of any Non-Serviced Mortgage Loan, the related Non-Serviced Mortgage
Loan Primary Servicing Fee Rate) and the Trustee Fee Rate, in each case computed
on the basis of the Stated Principal Balance of the related Mortgage Loan.
"Advance": Any P&I Advance or Servicing Advance.
"Adverse Grantor Trust Event": Any action that, under the Grantor
Trust Provisions, if taken or not taken, as the case may be, could endanger the
status of either Grantor Trust as a grantor trust under the Grantor Trust
Provisions.
"Adverse REMIC Event": As defined in Section 10.01(f).
"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 meanings correlative to the foregoing.
"Agent": As defined in Section 5.02(d)(i)(A).
"Agreement": This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
"Americold Portfolio A Notes": Collectively, the five pari passu
notes that make up the Americold Portfolio Whole Loan.
"Americold Portfolio Co-Lender Agreement": That certain
intercreditor agreement, dated as of February 28, 2007, by and among German
American Capital Corporation and JPMorgan Chase Bank, in each case, relating to
the relative rights of such holders, as the same may be further amended,
modified or supplemented from time to time.
"Americold Portfolio Mortgage Loan": With respect to the Americold
Portfolio Whole Loan, the promissory note made by the related Mortgagor and
secured by the Mortgage on the Americold Portfolio Mortgaged Property in the
original principal amount of $30,000,000, which is included in the Trust and
which is pari passu in right of payment to the Americold Portfolio A Notes, as
provided in the Americold Portfolio Co-Lender Agreement, as from time to time
amended, supplemented, modified or replaced.
"Americold Portfolio Mortgaged Property": The property or properties
which secure the Americold Portfolio Whole Loan.
"Americold Portfolio Pari Passu Loan": For so long as the Americold
Portfolio Mortgage Loan or a successor REO Loan with respect to the Americold
Portfolio Mortgage Loan is part of the Mortgage Pool, the other Americold
Portfolio A Notes. The Americold Portfolio Pari Passu Loans are not included in
the Trust.
"Americold Portfolio Whole Loan": The Americold Portfolio Mortgage
Loan, together with the Americold Portfolio Pari Passu Loans. References herein
to the Americold Portfolio Whole Loan shall be construed to refer to the
aggregate indebtedness under the Americold Portfolio Mortgage Loan and the
Americold Portfolio Pari Passu Loans.
"Applicable State and Local Tax Law": For purposes hereof, the
Applicable State and Local Tax Law shall be (a) the tax laws of the State of New
York, (b) the tax laws of the State of Minnesota and (c) such other state or
local tax laws whose applicability shall have been brought to the attention of
the Trustee 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 or local tax laws.
"Appraisal": An appraisal prepared by an Independent MAI appraiser
with at least five years experience in properties of like kind and in the same
area, prepared in accordance with 12 C.F.R. 225.64.
"Appraisal Reduction": For any Distribution Date and for any
Mortgage Loan (other than a Non-Serviced Mortgage Loan) or Serviced Whole Loan
as to which an Appraisal Reduction Event has occurred, an amount calculated by
the Special Servicer prior to the first Determination Date following the date
the Special Servicer receives or performs the required Appraisal equal to the
excess, if any, of (a) the Stated Principal Balance of such Mortgage Loan or
Serviced Whole Loan as of the date of such determination over (b) the excess of
(i) the sum of (A) 90% of the Appraised Value of the related Mortgaged Property
as determined (1) by one or more Appraisals (the costs of which shall be paid by
the Servicer as a Servicing Advance or, in the event such Servicing Advance
would be a Nonrecoverable Advance, an expense of the Trust Fund and, in the case
of a Serviced Whole Loan, an expense of the holder of each related Serviced
Companion Loan, to be apportioned in accordance with Section 3.05 hereof) with
respect to any such Mortgage Loan or Serviced Whole Loan (together with any
other Mortgage Loan cross-collateralized with such Mortgage Loan or Serviced
Whole Loan) as applicable, with an outstanding principal balance equal to or in
excess of $2,000,000 or (2) by an internal valuation performed by the Special
Servicer (unless the Special Servicer elects to obtain an Appraisal with the
consent of the Directing Certificateholder) with respect to any such Mortgage
Loan or Serviced Whole Loan (together with any other Mortgage Loan
cross-collateralized with such Mortgage Loan or Serviced Whole Loan) as
applicable, with an outstanding principal balance less than $2,000,000 and (B)
all escrows, letters of credit and reserves in respect of such Mortgage Loan or
Serviced Whole Loan over (ii) the sum of, as of the Due Date occurring in the
month of such Distribution Date, (A) to the extent not previously advanced by
the Servicer or the Trustee, all unpaid interest on such Mortgage Loan or
Serviced Whole Loan (together with any Mortgage Loan cross-collateralized with
such Mortgage Loan or Serviced Whole Loan), as applicable, at a per annum rate
equal to its Mortgage Rate (or in the case of any Serviced Whole Loan, the
weighted average of its Mortgage Rates), (B) all unreimbursed Advances and
interest thereon at the Reimbursement Rate and any Advances that were not
reimbursed out of collections on such Mortgage Loan in respect of such Mortgage
Loan or Serviced Whole Loan, (C) all unpaid Servicing Fees (to the extent not
duplicative of any amounts listed above) and Special Servicing Fees and (D) all
currently due and unpaid real estate taxes, assessments, insurance premiums and
ground rents and all other amounts due and unpaid with respect to such Mortgage
Loan or Serviced Whole Loan (which taxes, premiums, ground rents and other
amounts have not been subject to an Advance by the Servicer, the Special
Servicer or the Trustee, as applicable); provided, however, without limiting the
Special Servicer's obligation to order and obtain such Appraisal, if the Special
Servicer has not obtained the Appraisal or valuation, as applicable, referred to
above within 60 days of the Appraisal Reduction Event (or with respect to the
reduction event set forth in clause (ii) of the definition of Appraisal
Reduction Event, within such 120 days set forth therein), the amount of the
Appraisal Reduction shall be deemed to be an amount equal to 25% of the current
Stated Principal Balance of the related Mortgage Loan or Serviced Whole Loan
until such time as such Appraisal or internal valuation referred to above is
received and the Appraisal Reduction is calculated. Within 60 days after the
Appraisal Reduction Event, the Special Servicer shall order and receive an
Appraisal (the cost of which shall be paid as a Servicing Advance or, in the
event such Servicing Advance would be a Nonrecoverable Advance, a Trust Fund
expense) or an internal valuation; provided, however, that with respect to an
Appraisal Reduction Event as set forth in clause (ii) of the definition of
Appraisal Reduction Event, the Special Servicer shall order and receive such
Appraisal or internal valuation within the 120-day period set forth in such
clause (ii), which Appraisal or internal valuation shall be delivered by the
Special Servicer to the Servicer, the Trustee, the Directing Certificateholder
and the Trustee shall deliver such Appraisal or internal valuation to each other
Holder of a Class L, Class M, Class N, Class O, Class P, Class Q and Class T
Certificate at the expense of the requesting Holder who requests such Appraisal
or internal valuation in writing within 15 days of receipt by the Trustee of
such Appraisal or internal valuation from the Special Servicer. The Special
Servicer shall report the Appraisal Reduction Amount to the Trustee and the
Servicer (and, with respect to any Serviced Whole Loan, the holders of any
Serviced Companion Loan). The Servicer shall cooperate, in accordance with the
Servicing Standard, in furnishing necessary information to the Special Servicer
in connection with the Special Servicer's calculation of any Appraisal
Reduction. For any Distribution Date and for any Non-Serviced Mortgage Loan, the
appraisal reduction shall be calculated in accordance with and pursuant to the
terms of the related Non-Serviced Mortgage Loan Pooling Agreement.
With respect to each Mortgage Loan (other than any Non-Serviced
Mortgage Loan) or Serviced Whole Loan as to which an Appraisal Reduction has
occurred (unless such Mortgage Loan or Serviced Whole Loan has become a
Corrected Mortgage Loan (for such purposes taking into account any amendment or
modification of such Mortgage Loan or Serviced Whole Loan), and with respect to
which no other Appraisal Reduction Event has occurred during the preceding 12
months), the Special Servicer shall, (a) within 30 days of each annual
anniversary of the related Appraisal Reduction Event, (b) at such time as the
Special Servicer has notice of a material change in the condition of the related
Mortgaged Property or (c) at such time as the Special Servicer has notice of a
material defect in such Appraisal or internal valuation, as applicable, order an
Appraisal or conduct an internal valuation, as applicable, (which may be an
update of a prior Appraisal or internal valuation), the cost of which shall be
paid by the Servicer as a Servicing Advance or, in the event such Servicing
Advance would be a Nonrecoverable Advance, a Trust Fund expense. Based upon such
Appraisal or internal valuation, the Special Servicer shall redetermine and
report to the Trustee and the Servicer (and, with respect to any Serviced Whole
Loan, the holders of any Serviced Companion Loan) the amount of the Appraisal
Reduction with respect to such Mortgage Loan or Serviced Whole Loan and such
redetermined Appraisal Reduction shall replace the prior Appraisal Reduction
with respect to such Mortgage Loan or Serviced Whole Loan. Notwithstanding the
foregoing, the Special Servicer will not be required to obtain an Appraisal or
internal valuation with respect to a Mortgage Loan or Serviced Whole Loan which
is the subject of an Appraisal Reduction Event to the extent the Special
Servicer has obtained an Appraisal or internal valuation, as applicable, with
respect to the related Mortgaged Property within the 12-month period immediately
prior to the occurrence of such Appraisal Reduction Event; provided the Special
Servicer is not aware of any material change to the related Mortgaged Property
that has occurred that would affect the validity of such Appraisal or internal
valuation, as applicable. Instead, the Special Servicer may use such prior
Appraisal or internal valuation, as applicable, in calculating any Appraisal
Reduction with respect to such Mortgage Loan or Serviced Whole Loan.
Each Serviced Whole Loan shall be treated as a single mortgage loan
with respect to an Appraisal Reduction. An Appraisal Reduction calculated with
respect to a Serviced Whole Loan shall be applied first, to the related Serviced
B Note (if any) and second, to the related Mortgage Loan (or, if such Serviced
Whole Loan includes one or more Serviced Pari Passu Loans, pro rata among the
related Mortgage Loan and such one or more Serviced Pari Passu Loans).
Any Appraisal Reduction in respect of any Non-Serviced Mortgage Loan
shall be calculated by the related Non-Serviced Mortgage Loan Servicer in
accordance with and pursuant to the terms of the applicable Non-Serviced
Mortgage Loan Pooling Agreement.
Any Mortgage Loan (other than any Non-Serviced Mortgage Loan) or
Serviced Whole Loan previously subject to an Appraisal Reduction which becomes a
Corrected Mortgage Loan (for such purposes taking into account any amendment or
modification of such Mortgage Loan or Serviced Whole Loan), and with respect to
which no other Appraisal Reduction Event has occurred and is continuing, will no
longer be subject to an Appraisal Reduction.
Notwithstanding anything herein to the contrary, the aggregate
Appraisal Reduction related to a Mortgage Loan (other than any Non-Serviced
Mortgage Loan) or Serviced Whole Loan or the related REO Property will be
reduced to zero as of the date the related Mortgage Loan is paid in full,
liquidated, repurchased or otherwise removed from the Trust Fund.
"Appraisal Reduction Amount": With respect to any Distribution Date,
(i) with respect to the Certificates, an amount equal to the product of (a) the
applicable per annum Pass-Through Rate (i.e., for any month, one-twelfth of the
Pass-Through Rate) on the Class of Certificates to which the Appraisal Reduction
is allocated (or each such Pass-Through Rate if such Appraisal Reduction is
allocated to more than one such Class), and (b) the sum of all Appraisal
Reductions allocated to the Mortgage Loans with respect to such Distribution
Date (or, if such Appraisal Reduction is allocated to more than one Class of
Certificates, the portion thereof allocated to each such Class) or (ii) with
respect to each Mortgage Loan for such Distribution Date, an amount calculated
by the Special Servicer (who shall inform the Servicer of the amount so
calculated on the related Determination Date) equal to the product of (a) the
weighted average of the applicable per annum Pass-Through Rates (i.e., for any
month, one-twelfth of the Pass-Through Rate) on the Classes of Certificates to
which the Appraisal Reductions for all Mortgage Loans (and, in the case of any
Non-Serviced Mortgage Loan, the appraisal reductions effected under the related
Non-Serviced Mortgage Loan Pooling Agreement during the applicable period) are
allocated, weighted on the basis of the amount of Appraisal Reductions allocated
to each such Class, and (b) the Appraisal Reduction with respect to such
Mortgage Loan with respect to such Distribution Date.
"Appraisal Reduction Event": With respect to any Mortgage Loan
(other than any Non-Serviced Mortgage Loan) or Serviced Whole Loan, the earliest
of (i) the third anniversary of the date on which the first extension of the
Maturity Date of such Mortgage Loan or Serviced Whole Loan becomes effective as
a result of a modification of such Mortgage Loan or Serviced Whole Loan by the
Special Servicer pursuant to the terms hereof, which extension does not decrease
the amount of Monthly Payments on such Mortgage Loan or Serviced Whole Loan,
(ii) 120 days after an uncured delinquency (without regard to the application of
any grace period) occurs in respect of such Mortgage Loan or Serviced Whole
Loan, (iii) the date on which a reduction in the amount of Monthly Payments on
such Mortgage Loan or Serviced Whole Loan, or a change in any other material
economic term of such Mortgage Loan or Serviced Whole Loan (other than an
extension of the Maturity Date), becomes effective as a result of a modification
of such Mortgage Loan or Serviced Whole Loan by the Special Servicer, (iv) 30
days after the Special Servicer receives notice that a receiver or similar
official has been appointed with respect to the related Mortgaged Property, (v)
immediately after the Servicer or the Special Servicer receives notice that the
related Mortgagor has declared bankruptcy (but no later than 30 days after such
declaration of bankruptcy), (vi) 30 days after the date on which an involuntary
petition of bankruptcy is filed with respect to a Mortgagor, (vii) 30 days after
an uncured delinquency occurs in respect of a Balloon Payment with respect to
such Mortgage Loan or Serviced Whole Loan unless the Mortgagor has delivered to
the Servicer or the Special Servicer on the related Maturity Date a written
refinancing commitment reasonably satisfactory in form and substance to the
Special Servicer which provides that such refinancing will occur within 60 days
and (viii) immediately after such Mortgage Loan or Serviced Whole Loan becomes
an REO Loan; provided, however, that an Appraisal Reduction Event shall not
occur at any time when the aggregate Certificate Balances of all Classes of
Certificates (other than the Class A-1, Class A-2, Class A-3, Class A-AB, Class
A-4 and Class A-1A Certificates) has been reduced to zero. The Special Servicer
shall notify the Servicer, the Trustee and the Directing Certificateholder
promptly upon the occurrence of any of the foregoing events.
"Appraised Value": With respect to any Mortgaged Property (other
than the Mortgaged Property securing any Non-Serviced Mortgage Loan), the
appraised value thereof as determined by an Appraisal of the Mortgaged Property
securing the related Mortgage Loan or Serviced Whole Loan made by an Independent
MAI appraiser selected by the Servicer or Special Servicer, as applicable, or in
connection with an Appraisal Reduction, a valuation meeting the requirements of
clause (b)(i)(A)(2) of the definition of "Appraisal Reduction." With respect to
any Non-Serviced Mortgaged Property, the portion of the appraisal value
allocable thereto, as determined pursuant to the related Non-Serviced Mortgage
Loan Pooling Agreement.
"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 instrument executed by the
Mortgagor, assigning to the mortgagee all of the income, rents and profits
derived from the ownership, operation, leasing or disposition of all or a
portion of such Mortgaged Property, in the form which was duly executed,
acknowledged and delivered, as amended, modified, renewed or extended through
the date hereof and from time to time hereafter.
"Assumed Scheduled Payment": For any Due Period and with respect to
any Mortgage Loan that is delinquent in respect of its Balloon Payment
(including any REO Loan as to which the Balloon Payment would have been past
due), an amount equal to the sum of (a) the principal portion of the Monthly
Payment that would have been due on such Mortgage Loan on the Due Date occurring
in the related Due Period based on the constant payment required by the related
Mortgage Note or the original amortization schedule thereof or an amortization
schedule that has been recast in accordance with the terms of the related loan
documents (as calculated with interest at the related Mortgage Rate), if
applicable, assuming such Balloon Payment with respect to the related Mortgage
Loan or REO Loan has not become due, after giving effect to any modification of
such Mortgage Loan, and (b) interest on the Stated Principal Balance of such
Mortgage Loan or REO Loan, as applicable, at the applicable Mortgage Rate (net
of interest at the Servicing Fee Rate and, if applicable, the related
Non-Serviced Mortgage Loan Primary Servicing Fee Rate).
"Authenticating Agent": The Trustee or any agent of the Trustee
appointed to act as Authenticating Agent pursuant to Section 5.01.
"Available Distribution Amount": With respect to any Distribution
Date, an amount equal to the sum of all payments and other collections on or
with respect to the Mortgage Loans and any REO Properties (in the case of a
Non-Serviced Mortgage Loan, only to the extent received pursuant to the related
Co-Lender Agreement and Non-Serviced Mortgage Loan Pooling Agreement), including
(without duplication):
(a) the aggregate amount relating to the Trust Fund on deposit in
the Certificate Account and the Lower-Tier Distribution Account (exclusive
of any investment income contained therein and without regard to any
payments made to or received from the Class A-MFL or Class A-JFL Swap
Counterparty) as of either (i) with respect to the determination by the
Servicer pursuant to Section 3.04(b), 1:00 pm (New York City time) on the
related P&I Advance Date (including any amounts to be transferred from a
Serviced Whole Loan Custodial Account on such day) or (ii) with respect to
any determination by the Trustee, the close of business (New York City
time) on the related P&I Advance Date, exclusive of (without duplication):
(i) all Monthly Payments paid by the Mortgagors that are due
on a Due Date following the end of the related Due Period;
(ii) all Principal Prepayments (together with any related
payments of interest allocable to the period following the Due Date
for the related Mortgage Loan during the related Due Period),
Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds and
other unscheduled recoveries received after the related
Determination Date;
(iii) all amounts payable or reimbursable to any Person from
the Certificate Account pursuant to clauses (ii) through (x), (xii)
through (xvi), (xix) and (xx) of Section 3.05(a);
(iv) all amounts payable or reimbursable to any Person from
the Lower-Tier Distribution Account pursuant to clauses (ii) and
(iii) of Section 3.05(b);
(v) Reserved;
(vi) all Yield Maintenance Charges;
(vii) all amounts deposited in the Certificate Account and the
Lower-Tier Distribution Account in error; and
(viii) with respect to the Interest Reserve Loans and any
Distribution Date relating to each Interest Accrual Period ending in
(1) each January or (2) any December in a year immediately preceding
a year which is not a leap year (in either case, unless the related
Distribution Date is the final Distribution Date), an amount equal
to one day of interest on the Stated Principal Balance of such
Interest Reserve Loan as of the Due Date in the month preceding the
month in which such Distribution Date occurs at the related Mortgage
Rate (without giving effect to the second proviso of the definition
thereof) to the extent such amounts are to be deposited in the
Interest Reserve Account and held for future distribution pursuant
to Section 3.25;
(b) if and to the extent not already included in clause (a) above,
the aggregate amount transferred from the REO Account to the Certificate
Account for such Distribution Date pursuant to Section 3.16(c) and the
aggregate amount transferred from each Serviced Whole Loan Custodial
Account to the Certificate Account pursuant to Section 3.04(b);
(c) the aggregate amount of any P&I Advances made by the Servicer or
the Trustee, as applicable, for such Distribution Date pursuant to Section
4.03 or 7.05 (net of the related Trustee Fee with respect to the Mortgage
Loans for which such P&I Advances are made);
(d) for the Distribution Date occurring in each March (or February,
if the related Distribution Date is the final Distribution Date), the
Withheld Amounts remitted to the Lower-Tier Distribution Account pursuant
to Section 3.25(b); and
(e) all funds released from the Excess Liquidation Proceeds Reserve
Account for distribution on such Distribution Date.
Notwithstanding the investment of funds held in the Certificate Account pursuant
to Section 3.06, for purposes of calculating the Available Distribution Amount,
the amounts so invested shall be deemed to remain on deposit in such account.
"B Note": The Enclave B Note, the Downtown Plaza B Note, the Clarion
LaGuardia Airport Hotel B Note and the Prospect Plaza B Note.
"BACM 2007-1 Pooling Agreement": The Pooling and Servicing
Agreement, dated as of February 1, 2007, among Banc of America Commercial
Mortgage Inc., as depositor, Bank of America, National Association, as master
servicer, LNR Partners, Inc., as special servicer and LaSalle Bank National
Association, as trustee and REMIC administrator, relating to the issuance of
Banc of America Commercial Mortgage Inc. Commercial Mortgage Pass-Through
Certificates, Series 2007-1, as from time to time amended, supplemented,
modified or replaced.
"BACM 2007-1 Servicer": Bank of America, National Association, or
its successor servicer appointed pursuant to the BACM 2007-1 Pooling Agreement.
"BACM 2007-1 Special Servicer": LNR Partners, Inc. or its successor
special servicer, appointed pursuant to the BACM 2007-1 Pooling Agreement.
"BACM 2007-1 Trustee": LaSalle Bank National Association, as trustee
under the BACM 2007-1 Pooling Agreement.
"Balloon Loan": Any Mortgage Loan that by its original terms or by
virtue of any modification entered into as of the Closing Date provides for an
amortization schedule extending beyond its Maturity Date.
"Balloon Payment": With respect to any Balloon Loan as of any date
of determination, the Monthly Payment payable on the Maturity Date of such
Mortgage Loan.
"Bank of America Sub-Servicing Agreement": The Sub-Servicing
Agreement between the Servicer and Bank of America, National Association.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time
to time (Title 11 of the United States Code).
"BCRE": Barclays Capital Real Estate, Inc.
"BCRE Mortgage Loan": Any Mortgage Loan sold to the Depositor by
BCRE.
"Base Interest Fraction": With respect to any Principal Prepayment
on any Mortgage Loan and any of the Class A-1, Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class A-AB,
Class A-4, Class A-1A, Class A-M, Class A-J, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J and Class K Certificates and the Class A-MFL
Regular Interest and Class A-JFL Regular Interest, a fraction (not greater than
1) (a) whose numerator is the greater of zero and the amount, if any, by which
(i) the Pass-Through Rate on such Class of Certificates exceeds (ii) the yield
rate (as provided by the Servicer) used in calculating the Yield Maintenance
Charge with respect to such Principal Prepayment and (b) whose denominator is
the amount, if any, by which the (i) Mortgage Rate on such Mortgage Loan exceeds
(ii) the yield rate (as provided by the Servicer) used in calculating the Yield
Maintenance Charge with respect to such Principal Prepayment; provided, however,
that if such yield 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
clause (a)(i) above, then the Base Interest Fraction shall be zero.
"Book-Entry Certificate": Any Rule 144A Book-Entry Certificate or
Regulation S Book-Entry Certificate.
"Breach": As defined in Section 2.03(b).
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in New York, New York, Cleveland, Ohio, Miami Beach,
Florida, Dallas, Texas, Charlotte, North Carolina, any city in which the office
of the Certificate Registrar is located or any city in which the Corporate Trust
Office of the Trustee or principal place of business of the Servicer or the
Special Servicer is located, are authorized or obligated by law or executive
order to remain closed, provided that for purposes of administering the Premier
Self Storage - Toa Baja Mortgage Loan only, a day on which banking institutions
in Puerto Rico are authorized or obligated by law or executive order to remain
closed shall not be a Business Day.
"CD 2007-CD4 Pooling Agreement": The Pooling and Servicing
Agreement, dated as of March 1, 2007, among Citigroup Commercial Mortgage
Securities, Inc., as depositor, Midland Loan Services, Inc., as a master
servicer with respect to certain mortgage loans, Wachovia Bank, N.A., as a
master servicer with respect to certain mortgage loans, Capmark Finance Inc., as
a servicer with respect to certain mortgage loans, LNR Partners, Inc. as special
servicer with respect to certain mortgage loans, ▇.▇. ▇▇▇▇▇▇ Company, Inc., as a
special servicer with respect to certain mortgage loans and ▇▇▇▇▇ Fargo Bank,
N.A., as trustee, relating to the issuance of the CD 2007-CD4 Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2007-CD4,
as from time to time amended, supplemented, modified or replaced.
"CD 2007-CD4 Servicer": Midland Loan Services, Inc., Wachovia Bank
National Association or Capmark Finance Inc, as applicable, or any successor
servicer appointed pursuant to the CD 2007-CD4 Pooling Agreement.
"CD 2007-CD4 Special Servicer": LNR Partners, Inc. or its successor
special servicer, appointed pursuant to the CD 2007-CD4 Pooling Agreement.
"CD 2007-CD4 Trustee": ▇▇▇▇▇ Fargo Bank, N.A., as trustee under the
CD 2007-CD4 Pooling Agreement.
"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-C1, as executed and delivered by the
Certificate Registrar and authenticated and delivered hereunder by the
Authenticating Agent.
"Certificate Account": The custodial account or accounts created and
maintained by the Servicer pursuant to Section 3.04(a) in the name of the
Trustee on behalf of the Certificateholders, into which the amounts set forth in
Section 3.04(a) shall be deposited directly. Any such account or accounts shall
at all times be an Eligible Account.
"Certificate Balance": With respect to any Class of Certificates
(other than the Residual Certificates and the Class X Certificates), the Class
A-MFL Regular Interest or the Class A-JFL Regular Interest, (i) on or prior to
the first Distribution Date, an amount equal to the Original Certificate Balance
of such Class as specified in the Preliminary Statement hereto, and (ii) as of
any date of determination after the first Distribution Date, the Certificate
Balance of such Class on the Distribution Date immediately prior to such date of
determination (determined as adjusted pursuant to Section 1.02(iii)). The
Certificate Balance of the Class A-MFL Certificates shall be equal at all times
to the Certificate Balance of the Class A-MFL Regular Interest. The Certificate
Balance of the Class A-JFL Certificates shall be equal at all times to the
Certificate Balance of the Class A-JFL Regular Interest.
"Certificate Deferred Interest": For any Distribution Date with
respect to any Class of Certificates (other than the Class A-MFL, Class A-JFL,
Class X and Residual Certificates), the Class A-MFL Regular Interest or the
Class A-JFL Regular Interest, the amount of Mortgage Deferred Interest allocated
to such Class of Certificates, the Class A-MFL Regular Interest or the Class
A-JFL Regular Interest pursuant to Section 4.06(a).
"Certificate Factor": With respect to any Class of Certificates
(other than the Residual 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 Certificate Balance, and the denominator of which
is the related Original Certificate Balance.
"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 Register" and "Certificate Registrar": The register
maintained and registrar appointed pursuant to Section 5.02.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register; provided, however, that
solely for the purposes of giving any consent, approval or waiver pursuant to
this Agreement, any Certificate registered in the name of the Servicer, the
Special Servicer, the Depositor or any Affiliate thereof shall be deemed not to
be outstanding, and the Voting Rights to which it 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, if
such consent, approval or waiver sought from such party would in any way
increase its compensation or limit its obligations as Servicer, Special Servicer
or the Depositor, as applicable, hereunder; provided, however, so long as there
is no Event of Default with respect to the Servicer or the Special Servicer, the
Servicer and Special Servicer shall be entitled to exercise such Voting Rights
with respect to any issue which could reasonably be believed to adversely affect
such party's compensation or increase its obligations or liabilities hereunder;
and, provided, further, however, that such restrictions shall not apply to the
exercise of the Special Servicer's rights (or the Servicer's rights, if any) or
any of their Affiliates as a member of the Controlling Class or as the Directing
Certificateholder. Additionally, for purposes of determining if the requisite
consents of Certificateholders under Section 12.01(b) have been obtained, any
Certificate beneficially owned by a Mortgage Loan Seller or any of its
Affiliates shall be deemed not to be outstanding (and shall not be considered
when determining the percentage of Certificateholders consenting or when
calculating the total number of Certificates entitled to consent), and the
consent rights to which such Certificateholder would otherwise be entitled shall
not be taken into account in determining whether the requisite consents
necessary to effect any amendment under Section 12.01(b) have been obtained with
respect to amendments that are significantly modifying the permitted activities
of the Trust. The Trustee shall be entitled to request and rely upon a
certificate of the Servicer, the Special Servicer or the Depositor in
determining whether 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, that 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 Party" or "Certification Parties" shall have the
meaning set forth in Section 11.08.
"Certifying Servicer": The Servicer, the Special Servicer and any
Additional Servicer.
"Clarion LaGuardia Airport Hotel B Note": With respect to the
Clarion LaGuardia Airport Hotel Whole Loan, the related promissory note
designated as "Note B" made by the related Mortgagor and secured by the Mortgage
on the Mortgaged Property identified as "Clarion LaGuardia Airport Hotel" and
designated as Promissory B Note, which is not included in the Trust, which is
subordinated in right of payment to the Clarion LaGuardia Airport Hotel Mortgage
Loan as provided in the Clarion LaGuardia Airport Hotel Co-Lender Agreement.
"Clarion LaGuardia Airport Hotel Co-Lender Agreement": With respect
to the Clarion LaGuardia Airport Hotel Whole Loan, the related intercreditor
agreement by and between the holders of the Clarion LaGuardia Airport Hotel
Mortgage Loan and the Clarion LaGuardia Airport Hotel B Note, relating to the
relative rights of such holders of the respective Clarion LaGuardia Airport
Hotel Mortgage Loan and the Clarion LaGuardia Airport Hotel B Note, as the same
may be amended from time to time in accordance with the terms thereof.
"Clarion LaGuardia Airport Hotel Control Appraisal Period": The
meaning assigned to "Control Appraisal Period" in the Clarion LaGuardia Airport
Hotel Co-Lender Agreement.
"Clarion LaGuardia Airport Hotel Controlling Holder": The meaning
assigned to "Controlling Holder" in the Clarion LaGuardia Airport Hotel
Co-Lender Agreement.
"Clarion LaGuardia Airport Hotel Mortgage Loan": With respect to the
Clarion LaGuardia Airport Hotel Whole Loan, the related promissory note made by
the related Mortgagor and secured by the Mortgage on the Mortgaged Property
identified as "Clarion LaGuardia Airport Hotel" and designated as Promissory
Note A, which is included in the Trust and which is senior in right of payment
to the Clarion LaGuardia Airport Hotel B Note as provided in the Clarion
LaGuardia Airport Hotel Co-Lender Agreement.
"Clarion LaGuardia Airport Hotel Whole Loan": Collectively, the
Clarion LaGuardia Airport Hotel Mortgage Loan and the Clarion LaGuardia Airport
Hotel B Note. References herein to the Clarion LaGuardia Airport Hotel Whole
Loan shall be construed to refer to the aggregate indebtedness under the Clarion
LaGuardia Airport Hotel Mortgage Loan and the Clarion LaGuardia Airport Hotel B
Note.
"Class": With respect to any Certificates or Uncertificated
Lower-Tier Interests, all of the Certificates or Uncertificated Lower-Tier
Interests bearing the same alphabetical (and, if applicable, numerical) Class
designation.
"Class A Certificate": Any Class A-1, Class A-2, Class A-3, Class
A-AB, Class A-4 and Class A-1A Certificate.
"Class A-1 Certificate": A Certificate designated as "Class A-1" on
the face thereof, in the form of Exhibit A-1 hereto.
"Class A-1-1 Component": One of the 64 Components of the Class X-C
Certificates, having a Notional Amount equal to the Lower-Tier Principal Amount
of the Class LA-1-1 Uncertificated Lower-Tier Interest.
"Class A-1-2 Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LA-1-2
Uncertificated Lower-Tier Interest.
"Class A-1-3 Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LA-1-3
Uncertificated Lower-Tier Interest.
"Class A-1-4 Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LA-1-4
Uncertificated Lower-Tier Interest.
"Class A-1 Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to 3.8840%.
"Class A-1A Certificate": A Certificate designated as "Class A-1A"
on the face thereof, in the form of Exhibit A-6 hereto.
"Class A-1A-1 Component": One of the 64 Components of the Class X-C
Certificates, having a Notional Amount equal to the Lower-Tier Principal Amount
of the Class LA-1A-1 Uncertificated Lower-Tier Interest.
"Class A-1A-2 Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LA-1A-2
Uncertificated Lower-Tier Interest.
"Class A-1A-3 Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LA-1A-3
Uncertificated Lower-Tier Interest.
"Class A-1A-4 Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LA-1A-4
Uncertificated Lower-Tier Interest.
"Class A-1A-5 Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LA-1A-5
Uncertificated Lower-Tier Interest.
"Class A-1A-6 Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LA-1A-6
Uncertificated Lower-Tier Interest.
"Class A-1A-7 Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LA-1A-7
Uncertificated Lower-Tier Interest.
"Class A-1A-8 Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LA-1A-8
Uncertificated Lower-Tier Interest.
"Class A-1A-9 Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LA-1A-9
Uncertificated Lower-Tier Interest.
"Class A-1A-10 Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LA-1A-10
Uncertificated Lower-Tier Interest.
"Class A-1A-11 Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LA-1A-11
Uncertificated Lower-Tier Interest.
"Class A-1A-12 Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LA-1A-12
Uncertificated Lower-Tier Interest.
"Class A-1A-13 Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LA-1A-13
Uncertificated Lower-Tier Interest.
"Class A-1A-14 Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LA-1A-14
Uncertificated Lower-Tier Interest.
"Class A-1A-15 Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LA-1A-15
Uncertificated Lower-Tier Interest.
"Class A-1A Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the lesser of 5.4830% and the Weighted Average
Net Mortgage Rate.
"Class A-2 Certificate": A Certificate designated as "Class A-2" on
the face thereof, in the form of Exhibit A-2 hereto.
"Class A-2-1 Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LA-2-1
Uncertificated Lower-Tier Interest.
"Class A-2-2 Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LA-2-2
Uncertificated Lower-Tier Interest.
"Class A-2-3 Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LA-2-3
Uncertificated Lower-Tier Interest.
"Class A-2-4 Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LA-2-4
Uncertificated Lower-Tier Interest.
"Class A-2-5 Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LA-2-5
Uncertificated Lower-Tier Interest.
"Class A-2-6 Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LA-2-6
Uncertificated Lower-Tier Interest.
"Class A-2 Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to 5.4170%.
"Class A-3 Certificate": A Certificate designated as "Class A-3" on
the face thereof, in the form of Exhibit A-3 hereto.
"Class A-3-1 Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LA-3-1
Uncertificated Lower-Tier Interest.
"Class A-3-2 Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LA-3-2
Uncertificated Lower-Tier Interest.
"Class A-3 Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to 5.4810%.
"Class A-4 Certificate": A Certificate designated as "Class A-4" on
the face thereof, in the form of Exhibit A-5 hereto.
"Class A-4-1 Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LA-4-1
Uncertificated Lower-Tier Interest.
"Class A-4-2 Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LA-4-2
Uncertificated Lower-Tier Interest.
"Class A-4-3 Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LA-4-3
Uncertificated Lower-Tier Interest.
"Class A-4-4 Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LA-2-4
Uncertificated Lower-Tier Interest.
"Class A-4-5 Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LA-4-5
Uncertificated Lower-Tier Interest.
"Class A-4-6 Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LA-4-6
Uncertificated Lower-Tier Interest.
"Class A-4 Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class A-AB Certificate": A Certificate designated as "Class A-AB"
on the face thereof, in the form of Exhibit A-4 hereto.
"Class A-AB Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LA-AB
Uncertificated Lower-Tier Interest.
"Class A-AB Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to 5.4770%.
"Class A-AB Planned Principal Amount": The planned principal amount
set forth on Schedule 6 hereto relating to principal payments for the Class A-AB
Certificates.
"Class A-J Certificate": A Certificate designated as "Class A-J" on
the face thereof, in the form of Exhibit A-10 hereto.
"Class A-J Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LA-J
Uncertificated Lower-Tier Interest
"Class A-J Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the lesser of 5.6770% and the Weighted Average
Net Mortgage Rate.
"Class A-JFL Available Funds": With respect to any Distribution
Date, an amount equal to (a) the sum of (i) the total amount of all principal
and/or interest distributions on or in respect of the Class A-JFL Regular
Interest with respect to such Distribution Date and (ii) the amounts, if any,
received from the Class A-JFL Swap Counterparty pursuant to the Class A-JFL Swap
Contract for such Distribution Date, less (b) with respect to interest
distributions, all regularly scheduled fixed interest amounts (prior to the
termination of the Class A-JFL Swap Contract or prior to the occurrence and
during the continuance of a Swap Default, exclusive of any Yield Maintenance
Charges allocated in respect of the Class A-JFL Regular Interest) required to be
paid to the Class A-JFL Swap Counterparty pursuant to the Class A-JFL Swap
Contract for such Distribution Date.
"Class A-JFL Certificate": A Certificate designated as "Class A-JFL"
on the face hereof, in the form of Exhibit A-11 hereto, and evidencing an
undivided beneficial interest in the A-JFL Grantor Trust.
"Class A-JFL Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LA-JFL
Uncertificated Lower-Tier Interest.
"Class A-JFL Distribution Conversion": With respect to any
Distribution Date (i) upon the occurrence and during the continuation of a Swap
Default while the Trustee on behalf of the Trust is pursuing remedies under the
Class A-JFL Swap Contract pursuant to Section 3.32 or (ii) immediately upon and
following the termination of the Class A-JFL Swap Contract until a replacement
Class A-JFL Swap Contract is entered into, if any, the conversion of
distributions on the Class A-JFL Certificates from distributions based, in part,
on floating interest payments from the Class A-JFL Swap Counterparty under the
Class A-JFL Swap Contract to distributions based solely on fixed interest
distributions in respect of the Class A-JFL Regular Interest, as specified in
Section 4.01(n).
"Class A-JFL Fixed Amount": The "Fixed Amount" as defined in the
Class A-JFL Swap Contract.
"Class A-JFL Fixed Swap Payment": With respect to any Distribution
Date, the Class A-JFL Fixed Amount required to be paid to the Class A-JFL Swap
Counterparty by the Trust under the Class A-JFL Swap Contract.
"Class A-JFL Floating Amount": The "Floating Amount" as defined in
the Class A-JFL Swap Contract.
"Class A-JFL Floating Swap Payment": With respect to any
Distribution Date, the Class A-JFL Floating Amount required to be paid to the
Trust by the Class A-JFL Swap Counterparty under the Class A-JFL Swap Contract.
"Class A-JFL Floating Rate Account": The trust account or accounts
created and maintained as a separate account or accounts (or as a subaccount of
the Distribution Account) by the Trustee pursuant to Section 3.04(e), which
shall be entitled "▇▇▇▇▇ Fargo Bank, N.A., as Trustee, in trust for the
registered Holders of GE Commercial Mortgage Corporation, Commercial Mortgage
Pass Through Certificates, Series 2007-C1 Class A-JFL Certificates, Class A-JFL
Floating Rate Account," and which must be an Eligible Account (or a subaccount
of an Eligible Account). The Class A-JFL Floating Rate Account shall not be an
asset of either the Lower-Tier REMIC or Upper-Tier REMIC formed hereunder.
"Class A-JFL Grantor Trust": That certain "grantor trust" (within
the meaning of the Grantor Trust Provisions), the assets of which are the A-JFL
Grantor Trust Assets.
"Class A-JFL Grantor Trust Assets": The segregated pool of assets
consisting of the A-JFL Regular Interest, the Class A-JFL Swap Contract, the
Class A-JFL Floating Rate Account and the proceeds thereof, the beneficial
ownership of which is represented by the Class A-JFL Certificates.
"Class A-JFL Interest Distribution Amount": With respect to any
Distribution Date, an amount equal to (a) the sum of (i) amounts in respect of
interest received in respect of the Class A-JFL Regular Interest for such
Distribution Date, (ii) the Class A-JFL Floating Swap Payment and (iii) any
termination payment paid by the Class A-JFL Swap Counterparty to the Trustee
upon the termination of the Class A-JFL Swap Contract provided no replacement
Class A-JFL Swap Contract has been entered into prior to such Distribution Date,
less (b) the Class A-JFL Fixed Swap Payment for such Distribution Date.
"Class A-JFL Net Swap Payment": With respect to the related Interest
Accrual Period, the excess, if any of (i) the Class A-JFL Fixed Swap Payment
over (ii) the Class A-JFL Floating Swap Payment.
"Class A-JFL Pass-Through Rate": With respect to any Distribution
Date for which a Class A-JFL Distribution Conversion has not occurred and is not
continuing, a per annum rate equal to LIBOR plus 0.2800%, and with respect to
any Distribution Date on which a Class A-JFL Distribution Conversion has
occurred and is continuing, a per annum rate equal to the Class A-JFL Regular
Interest Pass-Through Rate.
"Class A-JFL Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the amount of principal allocated pursuant
to Section 4.01 in respect of the Class A-JFL Regular Interest on such
Distribution Date.
"Class A-JFL Regular Interest": The uncertificated interest in the
Upper-Tier REMIC, designated as "Class A-JFL", constituting a "regular interest"
in the Upper-Tier REMIC for purposes of the REMIC Provisions and having the
characteristics attributable thereto in this Agreement.
"Class A-JFL Regular Interest Pass-Through Rate": With respect to
any Distribution Date, a per annum rate equal to the lesser of (i) 5.6110% and
(ii) the Weighted Average Net Mortgage Rate.
"Class A-JFL Swap Contract": The 1992 ISDA Master Agreement
(Multi-Currency Cross Border) together with the related schedule, confirmation
and any annexes thereto, dated as of May 8, 2007, by and among the Swap
Counterparty and the Trustee, solely in its capacity as Trustee, on behalf of
the Trust, or any replacement interest rate swap agreement entered into by the
Trustee in accordance with this Agreement.
"Class A-JFL Swap Counterparty": Deutsche Bank AG, New York Branch,
acting in such capacity or its successor in interest or any Swap Counterparty
under a replacement Class A-JFL Swap Contract.
"Class A-JFL Swap Default": Any failure on the part of the Class
A-JFL Swap Counterparty to (i) make a required payment under the Class A-JFL
Swap Contract, as and when due thereunder, or (ii) either post acceptable
collateral or find an acceptable replacement swap counterparty after a Rating
Agency Trigger Event has occurred as required by Part 1, paragraph (k) of the
Schedule of the Master Agreement in the Class A-JFL Swap Contract or any early
termination date as designated under the Class A-JFL Swap Contract shall have
occurred.
"Class A-JFL Swap Termination Fees": Any fees or expenses payable by
the Class A-JFL Swap Counterparty to the Trust in connection with a Class A-JFL
Swap Default, termination of the Class A-JFL Swap Contract or liquidation of the
Class A-JFL Swap Contract, as specified in the Class A-JFL Swap Contract.
"Class A-M Certificate": A Certificate designated as "Class A-M" on
the face thereof, in the form of Exhibit A-8 hereto.
"Class A-M Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LA-M
Uncertificated Lower-Tier Interest.
"Class A-M Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the lesser of 5.6060% and the Weighted Average
Net Mortgage Rate.
"Class A-MFL Available Funds": With respect to any Distribution
Date, will equal (a) the sum of (i) the total amount of all principal and/or
interest distributions on or in respect of the Class A-MFL Regular Interest with
respect to such Distribution Date and (ii) the amounts, if any, received from
the Class A-MFL Swap Counterparty pursuant to the Class A-MFL Swap Contract for
such Distribution Date, less (b) with respect to interest distributions, all
regularly scheduled fixed interest amounts (prior to the termination of the
Class A-MFL Swap Contract or prior to the occurrence and during the continuance
of a Swap Default, exclusive of any Yield Maintenance Charges allocated in
respect of the Class A-MFL Regular Interest) required to be paid to the Class
A-MFL Swap Counterparty pursuant to the Class A-MFL Swap Contract for such
Distribution Date.
"Class A-MFL Certificate": A Certificate designated as "Class A-MFL"
on the face hereof, in the form of Exhibit A-9 hereto, and evidencing an
undivided beneficial interest in the A-MFL Grantor Trust.
"Class A-MFL Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LA-MFL
Uncertificated Lower-Tier Interest.
"Class A-MFL Distribution Conversion": With respect to any
Distribution Date (i) upon the occurrence and during the continuation of a Swap
Default while the Trustee on behalf of the Trust is pursuing remedies under the
Class A-MFL Swap Contract pursuant to Section 3.32 or (ii) immediately upon and
following the termination of the Class A-MFL Swap Contract until a replacement
Class A-MFL Swap Contract is entered into, if any, the conversion of
distributions on the Class A-MFL Certificates from distributions based, in part,
on floating interest payments from the Class A-MFL Swap Counterparty under the
Class A-MFL Swap Contract to distributions based solely on fixed interest
distributions in respect of the Class A-MFL Regular Interest, as specified in
Section 4.01(n).
"Class A-MFL Fixed Amount": The "Fixed Amount" as defined in the
Class A-MFL Swap Contract.
"Class A-MFL Fixed Swap Payment": With respect to any Distribution
Date, the Class A-MFL Fixed Amount required to be paid to the Class A-MFL Swap
Counterparty by the Trust under the Class A-MFL Swap Contract.
"Class A-MFL Floating Amount": The "Floating Amount" as defined in
the Class A-MFL Swap Contract.
"Class A-MFL Floating Swap Payment": With respect to any
Distribution Date, the Class A-MFL Floating Amount required to be paid to the
Trust by the Class A-MFL Swap Counterparty under the Class A-MFL Swap Contract.
"Class A-MFL Floating Rate Account": The trust account or accounts
created and maintained as a separate account or accounts (or as a subaccount of
the Distribution Account) by the Trustee pursuant to Section 3.04(e), which
shall be entitled "▇▇▇▇▇ Fargo Bank, N.A., as Trustee, in trust for the
registered Holders of GE Commercial Mortgage Corporation, Commercial Mortgage
Pass Through Certificates, Series 2007-C1 Class A-MFL Certificates, Class A-MFL
Floating Rate Account," and which must be an Eligible Account (or a subaccount
of an Eligible Account). The Class A-MFL Floating Rate Account shall not be an
asset of either the Lower-Tier REMIC or Upper-Tier REMIC formed hereunder.
"Class A-MFL Grantor Trust": That certain "grantor trust" (within
the meaning of the Grantor Trust Provisions), the assets of which are the A-MFL
Grantor Trust Assets.
"Class A-MFL Grantor Trust Assets": The segregated pool of assets
consisting of the A-MFL Regular Interest, the Class A-MFL Swap Contract, the
Class A-MFL Floating Rate Account and the proceeds thereof, the beneficial
ownership of which is represented by the Class A-MFL Certificates.
"Class A-MFL Interest Distribution Amount": With respect to any
Distribution Date, an amount equal to (a) the sum of (i) amounts in respect of
interest received in respect of the Class A-MFL Regular Interest for such
Distribution Date, (ii) the Class A-MFL Floating Swap Payment and (iii) any
termination payment paid by the Class A-MFL Swap Counterparty to the Trustee
upon the termination of the Class A-MFL Swap Contract provided no replacement
Class A-MFL Swap Contract has been entered into prior to such Distribution Date,
less (b) the Class A-MFL Fixed Swap Payment for such Distribution Date.
"Class A-MFL Net Swap Payment": With respect to the related Interest
Accrual Period, the excess, if any of (i) the Class A-MFL Fixed Swap Payment
bover (ii) the Class A-MFL Floating Swap Payment.
"Class A-MFL Pass-Through Rate": With respect to any Distribution
Date for which a Class A-MFL Distribution Conversion has not occurred and is not
continuing, a per annum rate equal to LIBOR plus 0.2300%, and with respect to
any Distribution Date on which a Class A-MFL Distribution Conversion has
occurred and is continuing, a per annum rate equal to the Class A-MFL Regular
Interest Pass-Through Rate.
"Class A-MFL Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the amount of principal allocated pursuant
to Section 4.01 in respect of the Class A-MFL Regular Interest on such
Distribution Date.
"Class A-MFL Regular Interest": The uncertificated interest in the
Upper-Tier REMIC, designated as "Class A-MFL", constituting a "regular interest"
in the Upper-Tier REMIC for purposes of the REMIC Provisions and having the
characteristics attributable thereto in this Agreement.
"Class A-MFL Regular Interest Pass-Through Rate": With respect to
any Distribution Date, a per annum rate equal to the lesser of (i) 5.5400% and
(ii) the Weighted Average Net Mortgage Rate.
"Class A-MFL Swap Contract": The 1992 ISDA Master Agreement
(Multi-Currency Cross Border) together with the related schedule, confirmation
and any annexes thereto, dated as of May 8, 2007, by and among the Swap
Counterparty and the Trustee, solely in its capacity as Trustee, on behalf of
the Trust, or any replacement interest rate swap agreement entered into by the
Trustee in accordance with this Agreement.
"Class A-MFL Swap Counterparty": Deutsche Bank AG, New York Branch
acting in such capacity or its successor in interest or any Swap Counterparty
under a replacement Class A-MFL Swap Contract.
"Class A-MFL Swap Default": Any failure on the part of the Class
A-MFL Swap Counterparty to (i) make a required payment under the Class A-MFL
Swap Contract, as and when due thereunder, or (ii) either post acceptable
collateral or find an acceptable replacement swap counterparty after a Rating
Agency Trigger Event has occurred as required by Part 1, paragraph (k) of the
Schedule of the Master Agreement in the Class A-MFL Swap Contract or any early
termination date as designated under the Class A-MFL Swap Contract shall have
occurred.
"Class A-MFL Swap Termination Fees": Any fees or expenses payable by
the Class A-MFL Swap Counterparty to the Trust in connection with a Class A-MFL
Swap Default, termination of the Class A-MFL Swap Contract or liquidation of the
Class A-MFL Swap Contract, as specified in the Class A-MFL Swap Contract.
"Class B Certificate": A Certificate designated as "Class B" on the
face thereof, in the form of Exhibit A-12 hereto.
"Class B Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LB
Uncertificated Lower-Tier Interest.
"Class B Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the lesser of 5.7460% and the Weighted Average Net
Mortgage Rate.
"Class C Certificate": A Certificate designated as "Class C" on the
face thereof, in the form of Exhibit A-13 hereto.
"Class C Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LC
Uncertificated Lower-Tier Interest.
"Class C Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate minus 0.091%.
"Class D Certificate": A Certificate designated as "Class D" on the
face thereof, in the form of Exhibit A-14 hereto.
"Class D-1 Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LD-1
Uncertificated Lower-Tier Interest.
"Class D-2 Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LD-2
Uncertificated Lower-Tier Interest.
"Class D Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate minus 0.052%.
"Class E Certificate": A Certificate designated as "Class E" on the
face thereof, in the form of Exhibit A-15 hereto.
"Class E-1 Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LE-1
Uncertificated Lower-Tier Interest.
"Class E-2 Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LE-2
Uncertificated Lower-Tier Interest.
"Class E-3 Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LE-3
Uncertificated Lower-Tier Interest.
"Class E Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class F Certificate": A Certificate designated as "Class F" on the
face thereof, in the form of Exhibit A-16 hereto.
"Class F-1 Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LF-1
Uncertificated Lower-Tier Interest.
"Class F-2 Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LF-2
Uncertificated Lower-Tier Interest
"Class F Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class G Certificate": A Certificate designated as "Class G" on the
face thereof, in the form of Exhibit A-17 hereto.
"Class G-1 Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LG-1
Uncertificated Lower-Tier Interest.
"Class G-2 Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LG-2
Uncertificated Lower-Tier Interest.
"Class G-3 Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LG-3
Uncertificated Lower-Tier Interest.
"Class G Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class H Certificate": A Certificate designated as "Class H" on the
face thereof, in the form of Exhibit A-18 hereto.
"Class H-1 Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LH-1
Uncertificated Lower-Tier Interest.
"Class H-2 Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LH-2
Uncertificated Lower-Tier Interest
"Class H Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class J Certificate": A Certificate designated as "Class J" on the
face thereof, in the form of Exhibit A-19 hereto.
"Class J-1 Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LJ-1
Uncertificated Lower-Tier Interest.
"Class J-2 Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LJ-2
Uncertificated Lower-Tier Interest
"Class J Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class K Certificate": A Certificate designated as "Class K" on the
face thereof, in the form of Exhibit A-20 hereto.
"Class K-1 Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LK-1
Uncertificated Lower-Tier Interest.
"Class K-2 Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LK-2
Uncertificated Lower-Tier Interest.
"Class K Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class L Certificate": A Certificate designated as "Class L" on the
face thereof, in the form of Exhibit A-21 hereto.
"Class L-1 Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LL-1
Uncertificated Lower-Tier Interest.
"Class L-2 Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LL-2
Uncertificated Lower-Tier Interest t.
"Class L Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the lesser of (i) 5.1800% and (ii) Weighted Average
Net Mortgage Rate.
"Class LA-1-1 Uncertificated Lower-Tier Interest": A regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1-2 Uncertificated Lower-Tier Interest": A regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1-3 Uncertificated Lower-Tier Interest": A regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1-4 Uncertificated Lower-Tier Interest": A regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-1 Uncertificated Lower-Tier Interest": A regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-2 Uncertificated Lower-Tier Interest": A regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-3 Uncertificated Lower-Tier Interest": A regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-4 Uncertificated Lower-Tier Interest": A regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-5 Uncertificated Lower-Tier Interest": A regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-6 Uncertificated Lower-Tier Interest": A regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-7 Uncertificated Lower-Tier Interest": A regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-8 Uncertificated Lower-Tier Interest": A regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-9 Uncertificated Lower-Tier Interest": A regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-10 Uncertificated Lower-Tier Interest": A regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-11 Uncertificated Lower-Tier Interest": A regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-12 Uncertificated Lower-Tier Interest": A regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-13 Uncertificated Lower-Tier Interest": A regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-14 Uncertificated Lower-Tier Interest": A regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-15 Uncertificated Lower-Tier Interest": A regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-2-1 Uncertificated Lower-Tier Interest": A regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-2-2 Uncertificated Lower-Tier Interest": A regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-2-3 Uncertificated Lower-Tier Interest": A regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-2-4 Uncertificated Lower-Tier Interest": A regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-2-5 Uncertificated Lower-Tier Interest": A regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-2-6 Uncertificated Lower-Tier Interest": A regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-3-1 Uncertificated Lower-Tier Interest": A regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-3-2 Uncertificated Lower-Tier Interest": A regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-4-1 Uncertificated Lower-Tier Interest": A regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-4-2 Uncertificated Lower-Tier Interest": A regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-4-3 Uncertificated Lower-Tier Interest": A regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-4-4 Uncertificated Lower-Tier Interest": A regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-4-5 Uncertificated Lower-Tier Interest": A regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-4-6 Uncertificated Lower-Tier Interest": A regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto
"Class LA-AB Uncertificated Lower-Tier Interest": A regular interest
in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LA-M Uncertificated Lower-Tier Interest": A regular interest
in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LA-MFL Uncertificated Lower-Tier Interest": A regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-J Uncertificated Lower-Tier Interest": A regular interest
in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LA-JFL Uncertificated Lower-Tier Interest": A regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LB Uncertificated Lower-Tier Interest": A regular interest in
the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LC Uncertificated Lower-Tier Interest": A regular interest in
the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LD-1 Uncertificated Lower-Tier Interest": A regular interest
in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LD-2 Uncertificated Lower-Tier Interest": A regular interest
in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LE-1 Uncertificated Lower-Tier Interest": A regular interest
in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LE-2 Uncertificated Lower-Tier Interest": A regular interest
in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LE-3 Uncertificated Lower-Tier Interest": A regular interest
in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LF-1 Uncertificated Lower-Tier Interest": A regular interest
in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LF-2 Uncertificated Lower-Tier Interest": A regular interest
in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LG-1 Uncertificated Lower-Tier Interest": A regular interest
in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LG-2 Uncertificated Lower-Tier Interest": A regular interest
in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LG-3 Uncertificated Lower-Tier Interest": A regular interest
in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LH-1 Uncertificated Lower-Tier Interest": A regular interest
in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LH-2 Uncertificated Lower-Tier Interest": A regular interest
in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LJ-1 Uncertificated Lower-Tier Interest": A regular interest
in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LJ-2 Uncertificated Lower-Tier Interest": A regular interest
in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LK-1 Uncertificated Lower-Tier Interest": A regular interest
in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LK-2 Uncertificated Lower-Tier Interest": A regular interest
in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LL-1 Uncertificated Lower-Tier Interest": A regular interest
in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LL-2 Uncertificated Lower-Tier Interest": A regular interest
in the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LM Uncertificated Lower-Tier Interest": A regular interest in
the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LN Uncertificated Lower-Tier Interest": A regular interest in
the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LO Uncertificated Lower-Tier Interest": A regular interest in
the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LP Uncertificated Lower-Tier Interest": A regular interest in
the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LQ Uncertificated Lower-Tier Interest": A regular interest in
the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LR Certificate": A Certificate designated as "Class LR" on
the face thereof, in the form of Exhibit A-30 hereto.
"Class LT Uncertificated Lower-Tier Interest": A regular interest in
the Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class M Certificate": A Certificate designated as "Class M" on the
face thereof, in the form of Exhibit A-22 hereto.
"Class M Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LM
Uncertificated Lower-Tier Interest.
"Class M Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the lesser of (i) 5.1800% and (ii) Weighted Average
Net Mortgage Rate.
"Class N Certificate": A Certificate designated as "Class N" on the
face thereof, in the form of Exhibit A-23 hereto.
"Class N Component": One of the 64 Components of the Class X-C
Certificates and one of the 58 Components of the Class X-P Certificates, having
a Notional Amount equal to the Lower-Tier Principal Amount of the Class LN
Uncertificated Lower-Tier Interest.
"Class N Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the lesser of (i) 5.1800% and (ii) Weighted Average
Net Mortgage Rate.
"Class O Certificate": A Certificate designated as "Class O" on the
face thereof, in the form of Exhibit A-24 hereto.
"Class O Component": One of the 64 Components of the Class X-C
Certificates, having a Notional Amount equal to the Lower-Tier Principal Amount
of the Class LO Uncertificated Lower-Tier Interest.
"Class O Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the lesser of (i) 5.1800% and (ii) Weighted Average
Net Mortgage Rate.
"Class P Certificate": A Certificate designated as "Class P" on the
face thereof, in the form of Exhibit A-25 hereto.
"Class P Component": One of the 64 Components of the Class X-C
Certificates, having a Notional Amount equal to the Lower-Tier Principal Amount
of the Class LP Uncertificated Lower-Tier Interest.
"Class P Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the lesser of (i) 5.1800% and (ii) Weighted Average
Net Mortgage Rate.
"Class Q Certificate": A Certificate designated as "Class P" on the
face thereof, in the form of Exhibit A-26 hereto.
"Class Q Component": One of the 64 Components of the Class X-C
Certificates, having a Notional Amount equal to the Lower-Tier Principal Amount
of the Class LQ Uncertificated Lower-Tier Interest.
"Class Q Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the lesser of (i) 5.1800% and (ii) Weighted Average
Net Mortgage Rate.
"Class R Certificate": A Certificate designated as "Class R" on the
face thereof, in the form of Exhibit A-29 hereto.
"Class T Certificate": A Certificate designated as "Class P" on the
face thereof, in the form of Exhibit A-27 hereto.
"Class T Component": One of the 64 Components of the Class X-C
Certificates, having a Notional Amount equal to the Lower-Tier Principal Amount
of the Class LT Uncertificated Lower-Tier Interest.
"Class T Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the lesser of (i) 5.1800% and (ii) Weighted Average
Net Mortgage Rate.
"Class Unpaid Interest Shortfall": As to any Distribution Date and
any Class of Regular Certificates, the excess, if any, of (a) the sum of (i) the
Distributable Certificate Interest in respect of such Class for the immediately
preceding Distribution Date and (ii) any outstanding Class Unpaid Interest
Shortfall payable to such Class on such preceding Distribution Date over (b) the
aggregate amount in respect of interest actually distributed to such Class on
such immediately preceding Distribution Date. The Class Unpaid Interest
Shortfall with respect to any Class of Certificates as of the initial
Distribution Date is zero. No interest shall accrue on Class Unpaid Interest
Shortfalls.
"Class X Certificates": The Class X-P and Class X-C Certificates,
collectively.
"Class X-C Certificate": A Certificate designated as "Class X-C" on
the face thereof, in the form of Exhibit A-28 hereto.
"Class X-C Notional Amount": For any date of determination, the
aggregate of the Lower-Tier Principal Amounts of the Uncertificated Lower-Tier
Interests as of the preceding Distribution Date (after giving effect to the
distributions of principal and allocation of Collateral Support Deficit on such
Distribution Date), and in the case of the first Distribution Date, as of the
Closing Date.
"Class X-C Strip Rate": With respect to any Class of Components
(other than Components that are also Class X-P Components) for any Distribution
Date, the (i) the Weighted Average Net Mortgage Rate for such Distribution Date
over (ii) the Pass-Through Rate of the Related Certificates. With respect to
each of the Class of Components that are also Class X-P Components (A) for any
Distribution Date occurring on or before the related Class X-P Component
Crossover Date, the excess, if any, of the Weighted Average Net Mortgage Rate
for such Distribution Date over (1) with respect to each of the Class B
Component, the Class C Component and the Class D Component, the sum of the (I)
the Class X-P Fixed Strip Rate and (II) the Pass-Through Rate for the Class C
Certificates (with respect to the Corresponding Component of the Class C
Certificates) and Class D Certificates (with respect to the Corresponding
Component of the Class D Certificates) for such Distribution Date and (2) for
each other Class X-P Component, the greater of (x) the Pass-Through Rate for
such Component and (y) the rate per annum corresponding to such Distribution
Date as set forth in Schedule 5 attached hereto, and (B) for any Distribution
Date occurring after the related Class X-P Component Crossover Date, the excess,
if any, of (i) the Weighted Average Net Mortgage rate for such Distribution Date
over the (ii) Pass-Through Rate of the Related Certificates. In no event will
any Class X-C Strip Rate be less than zero.
"Class X-P Certificate": A Certificate designated as "Class X-P" on
the face thereof, in the form of Exhibit A-7 hereto.
"Class X-P Component": Each of the Class A-1-2 Component, the Class
A-1-3 Component, the Class A-1-4 Component, the Class A-2-1 Component, the Class
A-2-2 Component, the Class A-2-3 Component, the Class A-2-4 Component, the Class
A-2-5 Component, the Class A-2-6 Component, the Class A-M Component, the Class
A-MFL Component, the Class A-4-1 Component, the Class A-4-2 Component, the Class
A-4-3 Component, the Class A-4-4 Component, the Class A-4-5 Component, the Class
A-4-6 Component, the Class A-AB Component, the Class A-1A-2 Component, the Class
A-1A-3 Component, the Class A-1A-4 Component, the Class A-1A-5 Component, the
Class A-1A-6 Component, the Class A-1A-7 Component, the Class A-1A-8 Component,
the Class A-1A-9 Component, the Class A-1A-10 Component, the Class A-1A-11
Component, the Class A-1A-12 Component, the Class A-1A-13 Component, the Class
A-1A-14 Component, the Class A-1A-15 Component, the Class A-J Component, the
Class A-JFL Component, the Class B Component, the Class C Component, the Class
D-1 Component, the Class D-2 Component, the Class E-1 Component, the Class E-2
Component, the Class E-3 Component, the Class F-1 Component, the Class F-2
Component, the Class G-1 Component, the Class G-2 Component, the Class G-3
Component, the Class H-1 Component, the Class H-2 Component, the Class J-1
Component, the Class J-2 Component, the Class K-1 Component, the Class K-2
Component, the Class L-1 Component, the Class L-2 Component, the Class M
Component and the Class N Component.
"Class X-P Component Crossover Date": With respect to each Class X-P
Component, the related Crossover Date as set forth in the table below:
Class X-P Component Component Crossover Date
---------------------------------------------------------- --------------------------------------
Components A-1-2 and A-1A-2 November 2007 Distribution Date
Components A-1-3 and A-1A-3 May 2008 Distribution Date
Components A-1-4, A-2-1 and A-1A-4 November 2008 Distribution Date
Components ▇-▇-▇, ▇-▇▇-▇, ▇-▇, ▇ and N May 2009 Distribution Date
Components ▇-▇-▇, ▇-▇▇-▇, ▇-▇ ▇▇▇ ▇-▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ Distribution Date
Components ▇-▇-▇, ▇-▇▇-▇, ▇-▇ and K-2 May 2010 Distribution Date
Components ▇-▇-▇, ▇-▇▇-▇, ▇-▇ ▇▇▇ ▇-▇ November 2010 Distribution Date
Components ▇-▇-▇, ▇-▇-▇, ▇-▇▇-▇, ▇-▇ and H-2 May 2011 Distribution Date
Components ▇-▇-▇, ▇-▇-▇, ▇-▇▇-▇▇, ▇▇▇▇▇ ▇-▇▇ and G-2 November 2011 Distribution Date
Components A-4-2, A-1A-11, F-1 and G-3 May 2012 Distribution Date
Components ▇-▇-▇, ▇-▇▇-▇▇, ▇-▇ and F-2 November 2012 Distribution Date
Components ▇-▇-▇, ▇-▇▇-▇▇, ▇-▇ May 2013 Distribution Date
Components ▇-▇-▇, ▇-▇▇-▇▇, ▇-▇ and E-3 November 2013 Distribution Date
Component ▇-▇-▇, ▇-▇▇-▇▇, ▇-▇, ▇-▇▇▇, ▇-▇, ▇-▇▇▇,
▇, ▇ and D-2 May 2014 Distribution Date
"Class X-P Fixed Strip Rate": A per annum rate equal to (i) 0.061%,
with respect to the Corresponding Component relating to the Class C Certificates
and (ii) 0.022%, with respect to the Corresponding Component relating to the
Class D Certificates.
"Class X-P Notional Amount": With respect to any Distribution Date,
the aggregate of the Notional Amounts of the Class X-P Components as of the
close of business on the preceding Distribution Date, excluding those Class X-P
Components for which the Class X-P Component Crossover Date has previously
passed.
"Class X-P Strip Rate": With respect to each of the Class X-P
Components (A) for any Distribution Date occurring on or before the related
Class X-P Component Crossover Date, (1) with respect to each of the Class C
Component and the Class D Component, the applicable Class X-P Fixed Strip Rate
and (2) with respect to each other Class X-P Component, the excess, if any, of
(x) the lesser of (i) the rate per annum corresponding to such Distribution Date
as set forth in Schedule 5 attached hereto and (ii) the Weighted Average Net
Mortgage Rate for such Distribution Date over (y) the Pass-Through Rate for such
the Related Certificates, and (B) for any Distribution Date occurring after the
related Class X-P Component Crossover Date, 0%. In no event will any Class X-P
Strip Rate be less than zero.
"Clearstream": Clearstream Banking, societe anonyme.
"Closing Date": May 8, 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, certificateholders, issuers,
placement agents and underwriters generally involved in the commercial mortgage
loan securitization industry, which is the principal such association or
organization in the commercial mortgage loan securitization industry and whose
principal purpose 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 Servicer and reasonably acceptable to the Trustee, the Special Servicer
and the Directing Certificateholder.
"CMSA Advance Recovery Report": The monthly report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Advance Recovery Report" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "Advance Recovery Report" available as of the Closing Date on
the CMSA Website, is reasonably acceptable to the Servicer and the Trustee.
"CMSA Bond Level File": The monthly report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Bond Level File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be 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 "Bond Level File" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Trustee.
"CMSA Collateral Summary File": The report substantially in the form
of, and containing the information called for in, the downloadable form of the
"CMSA 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 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 "CMSA Collateral Summary File" available as of the Closing Date
on the CMSA Website, is reasonably acceptable to the Trustee.
"CMSA Comparative Financial Status Report": A report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Comparative Financial Status Report" available as of the Closing
Date on the CMSA Website, or such other form for the presentation of such
information as may from time to time be 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
"Comparative Financial Status Report" available as of the Closing Date on the
CMSA Website, is reasonably acceptable to the 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 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 "Delinquent Loan Status Report" available as of the Closing Date
on the CMSA Website, is reasonably acceptable to the Servicer.
"CMSA Financial File": A report substantially in the form of, and
containing the information called for in, the downloadable form of the "CMSA
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 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 "CMSA Financial File" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the 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 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 "Historical Loan Modification and Corrected Mortgage Loan
Report" available as of the Closing Date on the CMSA Website, is reasonably
acceptable to the Servicer.
"CMSA Investor Reporting Package": Collectively:
(a) the following six electronic files: (i) CMSA Loan Setup File,
(ii) CMSA Loan Periodic Update File, (iii) CMSA Property File, (iv) CMSA
Bond Level File, (v) CMSA Financial File and (vi) CMSA Collateral Summary
File;
(b) the following ten supplemental reports: (i) CMSA Delinquent Loan
Status Report, (ii) CMSA Total Loan Report, (iii) CMSA Historical Loan
Modification and Corrected Mortgage Loan Report, (iv) CMSA REO Status
Report, (v) CMSA Comparative Financial Status Report, (vi) CMSA Servicer
Watch List, (vii) CMSA NOI Adjustment Worksheet, (viii) the CMSA Loan
Level Reserve-LOC Report, (ix) the CMSA Advance Recovery Report, (x) the
CMSA Operating Statement Analysis Report; and
(c) such other reports as the CMSA may designate in the future,
which are reasonably acceptable to the Servicer or Special Servicer, 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 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 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 "Loan Periodic Update File" available as of the Closing Date on
the CMSA Website, is reasonably acceptable to the Servicer and the Trustee.
"CMSA Loan Setup File": The report substantially in the form of, and
containing the information called for in, the downloadable form of the "Loan
Setup File" available as of the Closing Date on the CMSA Website, or such other
form for the presentation of such information and containing such additional
information as may from time to time be 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
"Loan Setup File" available as of the Closing Date on the CMSA Website, is
reasonably acceptable to the Servicer and the Trustee.
"CMSA NOI Adjustment Worksheet": A report substantially in the form
of, and containing the information called for in, the downloadable form of the
"NOI Adjustment Worksheet" available as of the Closing Date on the CMSA Website,
or such other form for the presentation of such information and containing such
additional information as may from time to time be 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 "NOI Adjustment Worksheet" available as of the Closing Date on the
CMSA Website, is acceptable to the Servicer or the Special Servicer, as
applicable.
"CMSA Operating Statement Analysis Report": A report substantially
in the form of, and contain 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 approved
by the CMSA for commercial mortgage-backed securities transactions generally
and, insofar as it requires the presentation of information in addition to that
called for by the form of the "Operating Statement Analysis Report" available as
of the Closing Date on the CMSA Website, is reasonably acceptable to the
Servicer or the Special Servicer, as applicable.
"CMSA Property File": The monthly 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 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 "Property File" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Servicer.
"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 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 "REO Status Report" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the 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 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 "Servicer Watch List" available
as of the Closing Date on the CMSA Website, is reasonably acceptable to the
Servicer.
"CMSA Special Servicer Loan File": The 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 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 "Special Servicer Loan File"
available as of the Closing Date on the CMSA Website, is reasonably acceptable
to the Servicer and the Special Servicer.
"CMSA Supplemental Servicer Reports": The CMSA Delinquent Loan
Status Report, the CMSA Historical Loan Modification and Corrected Mortgage Loan
Report, the CMSA REO Status Report, the CMSA Servicer Watch List, the CMSA NOI
Adjustment Worksheet, the CMSA Comparative Financial Status Report, the CMSA
Loan Level Reserve-LOC Report and the CMSA Operating Statement Analysis Report.
"CMSA Total Loan Report": A report substantially in the form of, and
containing the information called for in, the downloadable form of the "Total
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 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
"Total Loan Report" available as of the Closing Date on the CMSA Website, is
reasonably acceptable to the Servicer.
"CMSA Website": The CMSA's Website located at "▇▇▇.▇▇▇▇.▇▇▇" or such
other primary website as the CMSA may establish for dissemination of its data
file and report forms.
"Code": The Internal Revenue Code of 1986, as amended from time to
time, and applicable final or temporary regulations of the U.S. Department of
the Treasury issued pursuant thereto.
"Co-Lender Agreement": Any of the Skyline Portfolio Co-Lender
Agreement, the Pacific Shores Co-Lender Agreement, the Four Seasons Co-Lender
Agreement, the Mall of America Co-Lender Agreement, the Americold Portfolio
Co-Lender Agreement, the ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Co-Lender Agreement, the Downtown
Plaza Co-Lender Agreement, The Enclave Co-Lender Agreement, the Clarion
LaGuardia Airport Hotel Co-Lender Agreement or the Prospect Plaza Co-Lender
Agreement, as applicable.
"Collateral Support Deficit": As defined in Section 4.04.
"COMM 2006-C8 Pooling Agreement": The Pooling and Servicing
Agreement, dated as of December 1, 2006, among Deutsche Mortgage & Asset
Receiving Corporation, as depositor, Midland Loan Services, Inc., as master
servicer, LNR Partners, Inc., as special servicer and LaSalle Bank National
Association, as trustee, relating to the issuance of Deutsche Mortgage & Asset
Receiving Corporation Commercial Mortgage Pass-Through Certificates, Series
2006-C8, as from time to time amended, supplemented, modified or replaced.
"COMM 2006-C8 Servicer": Midland Loan Services, Inc., or its
successor servicer appointed pursuant to the COMM 2006-C8 Pooling Agreement.
"COMM 2006-C8 Special Servicer": LNR Partners, Inc. or its successor
special servicer, appointed pursuant to the COMM 2006-C8 Pooling Agreement.
"COMM 2006-C8 Trustee": LaSalle Bank National Association, as
trustee under the COMM 2006-C8 Pooling Agreement.
"Commission": The Securities and Exchange Commission.
"Compensating Interest Payment": As defined in Section 3.19(a).
"Component": Any of the Class A-1-1 Component, the Class A-1-2
Component, the Class A-1-3 Component, the Class A-1-4 Component, the Class A-2-1
Component, the Class A-2-2 Component, the Class A-2-3 Component, the Class A-2-4
Component, the Class A-2-5 Component, the Class A-2-6 Component, the Class A-M
Component, the Class A-MFL Component, the Class A-4-1 Component, the Class A-4-2
Component, the Class A-4-3 Component, the Class A-4-4 Component, the Class A-4-5
Component, the Class A-4-6 Component, the Class A-AB Component, the Class A-1A-1
Component, the Class A-1A-2 Component, the Class A-1A-3 Component, the Class
A-1A-4 Component, the Class A-1A-5 Component, the Class A-1A-6 Component, the
Class A-1A-7 Component, the Class A-1A-8 Component, the Class A-1A-9 Component,
the Class A-1A-10 Component, the Class A-1A-11 Component, the Class A-1A-12
Component, the Class A-1A-13 Component, the Class A-1A-14 Component, the Class
A-1A-15 Component, the Class A-J Component, the Class A-JFL Component, the Class
B Component, the Class C Component, the Class D-1 Component, the Class D-2
Component, the Class E-1 Component, the Class E-2 Component, the Class E-3
Component, the Class F-1 Component, the Class F-2 Component, the Class G-1
Component, the Class G-2 Component, the Class G-3 Component, the Class H-1
Component, the Class H-2 Component, the Class J-1 Component, the Class J-2
Component, the Class K-1 Component, the Class K-2 Component, the Class L-1
Component, the Class L-2 Component, the Class M Component, the Class N
Component, the Class O Component, the Class P Component, the Class Q Component
and the Class T Component."
"Condemnation Proceeds": All proceeds paid in connection with the
full or partial condemnation of a Mortgaged Property, to the extent such
proceeds are not applied to the restoration of the related Mortgaged Property or
released to the Mortgagor or any tenants or ground lessors, in accordance with
the Servicing Standard (in the case of a Non-Serviced Mortgage Loan, to the
extent of any portion of such amounts received by the Trustee or the Servicer
pursuant to the related Co-Lender Agreement).
"Controlling Class": As of any date of determination, the most
subordinate Class of Regular Certificates (other than the Class X Certificates)
then outstanding that has a then aggregate Certificate Balance at least equal to
25% of the initial Certificate Balance of such Class of Certificates. As of the
Closing Date, the Controlling Class will be the Class P Certificates.
"Controlling Class Certificateholders": Each Holder (or Certificate
Owner, if applicable) of a Certificate of the Controlling Class as certified by
the Certificate Registrar to the Trustee from time to time by such Holder (or
Certificate Owner).
"Corporate Trust Office": The principal corporate trust office of
the Trustee at which at any particular time its asset backed securities trust
business with respect to this Agreement shall be administered, which office at
the date of the execution of this Agreement is located at ▇▇▇▇▇ Fargo Center,
Sixth and Marquette, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, with respect to
certificate transfer and payment services, at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: GE Commercial Mortgage Corporation, Series
2007-C1 Trust with respect to other trustee and securities administration
services, or the principal trust office of any successor trustee qualified and
appointed pursuant to Section 8.08
"Corrected Mortgage Loan": Any Specially Serviced Mortgage Loan as
to which (a) with respect to the circumstances described in clauses (i) and (ii)
of the definition of Servicing Transfer Event, the related Mortgagor has brought
the Specially Serviced Mortgage Loan current and thereafter made three
consecutive full and timely Monthly Payments (for such purposes taking into
account any modification or amendment of such Specially Serviced Mortgage Loan);
provided that no additional default is foreseeable in the good faith judgment of
the Special Servicer, (b) with respect to the circumstances described in clauses
(iii), (iv), (v), (vi) or (viii) of the definition of Servicing Transfer Event,
such circumstances cease to exist in the good faith judgment of the Special
Servicer and (c) with respect to the circumstances described in clause (vii) of
the definition of Servicing Transfer Event, such default has been cured,
provided, that, in each case no other Servicing Transfer Event is continuing
with respect thereto.
"Credit File": As defined in Section 2.01(d).
"Cross-Collateralized Mortgage Loan": Any Mortgage Loan that is
cross-collateralized and cross-defaulted with another Mortgage Loan.
"Cross-Collateralized Group": The Cross-Collateralized Mortgage
Loans which are cross-collateralized and cross-defaulted with each other.
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage Files, which
Person shall not be the Depositor, either of the Mortgage Loan Sellers or an
Affiliate of any of them. The Trustee shall be the initial Custodian.
"Cut-off Date": With respect to each Mortgage Loan, the later of May
1, 2007 or the date of origination of such Mortgage Loan, or in the case of the
Mortgage Loans identified as Loan Nos. 1 and 16 on the Mortgage Loan Schedule,
May 5, 2007.
"Cut-off Date Principal Balance": With respect to any Mortgage Loan
or Serviced Companion Loan, the outstanding principal balance of such Mortgage
Loan or Serviced Companion Loan, as of the Cut-off Date, after application of
all payments of principal due on or before such date, whether or not received
but without regard to any prepayments received on or prior to the Cut-off Date.
"DBRS": Dominion Bond Rating Service, Inc., or any successor
thereto.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan and
as of any date of determination, and calculated without regard to any
cross-collateralization feature of such Mortgage Loan, the ratio of (x) the Net
Cash Flow (before payment of any debt service on such Mortgage Loan) generated
by the related Mortgaged Property or Mortgaged Properties during the most
recently ended period of not more than twelve (12) months or less than three (3)
months for which financial statements (whether or not audited) have been
received by or on behalf of a Mortgage Loan Seller (prior to the Closing Date),
or the Servicer or the Special Servicer (following the Closing Date), to (y) the
product of the amount of the Monthly Payment in effect for such Mortgage Loan as
of such date of determination, multiplied by the number of months represented in
the financial statements. The Servicer may, in accordance with CMSA reporting
standards, report Net Cash Flow with respect to each Mortgaged Property where
one or more Mortgage Loans are secured by multiple Mortgaged Properties;
provided, however, that for purposes of determining Debt Service Coverage Ratio
compliance, calculations shall be made at the Mortgage Loan or Serviced Whole
Loan level and, provided, further, that with respect to the Mortgage Loans
indicated on Schedule 3, which pay interest only for a specified period of time
set forth in the related loan documents and then pay principal and interest, the
related Monthly Payment will be calculated (for purposes of this definition
only) to include interest and principal (based on the amortization schedule
length indicated on Schedule 3).
"Default Interest": With respect to any Mortgage Loan or Serviced
Whole Loan which is in default pursuant to the terms of the related loan
documents for any related Due Period, all interest accrued in respect of such
Mortgage Loan or Serviced Whole Loan during such Due Period provided for in the
related Mortgage Note or Mortgage as a result of the related default (exclusive
of Late Payment Charges) that is in excess of interest at the related Mortgage
Rate accrued on the unpaid principal balance of such Mortgage Loan or Serviced
Whole Loan outstanding from time to time during such Due Period.
"Defaulted Mortgage Loan": A Mortgage Loan that is delinquent at
least sixty days in respect of its Monthly Payments or more than thirty days
delinquent in respect of its Balloon Payment, if any, 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.
"Defaulting Party": As defined in Section 7.01(b).
"Defect": As defined in Section 2.02(e).
"Deficient Valuation": With respect to any Mortgage Loan or Serviced
Whole Loan, a valuation by a court of competent jurisdiction of the Mortgaged
Property in an amount less than the then outstanding principal balance of the
Mortgage Loan or Serviced Whole Loan, which valuation results from a proceeding
initiated under the Bankruptcy Code.
"Definitive Certificate": As defined in Section 5.01(a).
"Denomination": As defined in Section 5.01(a).
"Depositor": GE Commercial Mortgage Corporation, a Delaware
corporation, or its successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named. The nominee of the initial Depository for purposes
of registering those Certificates that are to be Book-Entry Certificates, is
Cede & Co. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(3) of the Uniform Commercial Code of the State of New
York and a "clearing agency" registered pursuant to the provisions of Section
17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Depository Rules": As defined in Section 5.02(b).
"Determination Date": With respect to any Distribution Date, the
earlier of (i) the 6th day of the month in which such Distribution Date occurs
or, if such 6th day is not a Business Day, the immediately preceding Business
Day, and (ii) the 4th Business Day prior to the related Distribution Date.
"Directing Certificateholder": The Controlling Class
Certificateholder or a designee selected by more than 50% of the Controlling
Class Certificateholders, by Certificate Balance, as certified by the
Certificate Registrar from time to time; provided, however, that (i) absent such
selection, or (ii) until a Directing Certificateholder is so selected or (iii)
upon receipt by the Trustee of a notice from a majority of the Controlling Class
Certificateholders, by Certificate Balance, that a Directing Certificateholder
is no longer designated, the Controlling Class Certificateholder that owns the
largest aggregate Certificate Balance of the Controlling Class will be the
Directing Certificateholder. LNR Securities Holdings, LLC, a Delaware limited
liability company, shall be the initial Directing Certificateholder, without
necessity of further notice or selection.
"Directly Operate": With respect to any REO Property, the furnishing
or rendering of services to the tenants thereof, that are not customarily
provided to tenants in connection with the rental of space "for occupancy only"
within the meaning of Treasury Regulations Section 1.512(b)-1(c)(5), the
management or operation of such REO Property, the holding of such REO Property
primarily for sale to customers (other than the sale of the REO Property
pursuant to Section 3.18), the use of such REO Property in a trade or business
conducted by the Trust Fund or the performance of any construction work on the
REO Property (other than the completion of a building or improvement, where more
than 10% of the construction of such building or improvement was completed
before default became imminent), other than through an Independent Contractor;
provided, however, that the Trustee (or the Special Servicer on behalf of the
Trustee) shall not be considered to Directly Operate an REO Property solely
because the Trustee (or the Special Servicer on behalf of the Trustee)
establishes rental terms, chooses tenants, enters into or renews leases, deals
with taxes and insurance or makes decisions as to repairs or capital
expenditures with respect to such REO Property or takes other actions consistent
with Treasury Regulations Section 1.856-4(b)(5)(ii).
"Disqualified Organization": Any of (i) the United States, any State
or political subdivision thereof, any possession of the United States or any
agency or instrumentality of any of the foregoing (other than an instrumentality
which is a corporation if all of its activities are subject to tax and a
majority of its board of directors is not selected by such governmental unit),
(ii) a foreign government, any international organization or any agency or
instrumentality of any of the foregoing, (iii) any organization (other than
certain farmers' cooperatives described in Section 521 of the Code) which is
exempt from the tax imposed by Chapter 1 of the Code (including the tax imposed
by Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381(a)(2)(C) of the
Code and (v) any other Person so designated by the Servicer based upon an
Opinion of Counsel that the holding of an Ownership Interest in a Residual
Certificate by such Person may cause either the Upper-Tier REMIC or the
Lower-Tier REMIC to fail to qualify as a REMIC 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.
"Distributable Certificate Interest": With respect to any
Distribution Date, as to any Class of Regular Certificates (other than the Class
A-MFL and Class A-JFL Certificates), and the Class A-MFL Regular Interest and
the Class A-JFL Regular Interest, the Accrued Certificate Interest in respect of
such Class of Regular Certificates, Class A-MFL Regular Interest or Class A-JFL
Regular Interest for such Distribution Date, reduced (to not less than zero) by
(i) such Class's share of the Uncovered Prepayment Interest Shortfall for such
Distribution Date and (ii) by any allocations to such Class of Certificates, or
the Class A-MFL Regular Interest or Class A-JFL Regular Interest (other than in
the case of the Class X Certificates) of any Certificate Deferred Interest for
such Distribution Date.
"Distribution Account": The segregated account created and
maintained by the Trustee pursuant to Section 3.04(b) in trust for the
Certificateholders, which shall be entitled "▇▇▇▇▇ Fargo Bank, N.A., as Trustee,
in trust for the registered Holders of GE Commercial Mortgage Corporation,
Commercial Mortgage Pass-Through Certificates, Series 2007-C1, Distribution
Account," which account shall be deemed to consist of, collectively, the
Lower-Tier Distribution Account, the Upper-Tier Distribution Account, the Class
A-MFL Floating Rate Account and the Class A-JFL Floating Rate Account. The
Distribution Account shall at all times be an Eligible Account.
"Distribution Date": The 10th day of any month or, if such 10th day
is not a Business Day, the Business Day immediately following such 10th day,
commencing in June 2007.
"Downtown Plaza B Note": With respect to the Downtown Plaza Whole
Loan, the related promissory note made by the related Mortgagor and secured by
the Mortgage on the Mortgaged Property identified as "Downtown Plaza" and
designated as Promissory Note B, which is not included in the Trust, which is
subordinated in right of payment to the Downtown Plaza Mortgage Loan as provided
in the Downtown Plaza Co-Lender Agreement.
"Downtown Plaza Co-Lender Agreement": With respect to the Downtown
Plaza Whole Loan, the related intercreditor agreement by and between the holders
of the Downtown Plaza Mortgage Loan and the Downtown Plaza B Note, relating to
the relative rights of such holders of the respective Downtown Plaza Mortgage
Loan and the Downtown Plaza B Note, as the same may be amended from time to time
in accordance with the terms thereof.
"Downtown Plaza Mortgage Loan": With respect to the Downtown Plaza
Whole Loan, the related promissory note made by the related Mortgagor and
secured by the Mortgage on the Mortgaged Property identified as "Downtown Plaza"
and designated as Promissory Note A, which is included in the Trust and which is
senior in right of payment to the Downtown Plaza B Note as provided in the
Downtown Plaza Co-Lender Agreement.
"Downtown Plaza Whole Loan": Collectively, the Downtown Plaza
Mortgage Loan and the Downtown Plaza B Note. References herein to the Downtown
Plaza Whole Loan shall be construed to refer to the aggregate indebtedness under
the Downtown Plaza Mortgage Loan and the Downtown Plaza B Note.
"Due Date": With respect to (i) any Mortgage Loan on or prior to its
Maturity Date, the day of the month set forth in the related Mortgage Note on
which each Monthly Payment thereon is scheduled to be first due, (ii) any
Mortgage Loan after the Maturity Date therefor, the day of the month set forth
in the related Mortgage Note on which each Monthly Payment on such Mortgage 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 Mortgage Loan had been scheduled to be first due.
"Due Period": With respect to any Distribution Date and any Mortgage
Loan or Serviced Whole Loan, the period commencing on the day immediately
succeeding the Due Date of a Mortgage Loan or a Serviced Whole Loan occurring in
the month preceding the month in which such Distribution Date occurs and ending
on and including the Due Date occurring in the month in which such Distribution
Date occurs. Notwithstanding the foregoing, in the event that the last day of
the Due Period (or applicable grace period) is not a Business Day, any payments
received with respect to the Mortgage Loan or Serviced Whole Loan relating to
such Due Period on the Business Day immediately following such day shall be
deemed to have been received during such Due Period and not during any other Due
Period.
"▇▇▇▇▇": The Commission's Electronic Data Gathering and Retrieval
System.
"Eligible Account": Either (a) a segregated account or accounts
maintained with a federal or state chartered depository institution or trust
company (including the Trustee) (i) the long-term unsecured debt obligations of
which are rated at least (A) "AA-" by S&P (or "A+" by S&P if such institution's
short term rating is at least "A-1"), (B) "Aa3" by Moody's, if the deposits are
to be held in the account more than 30 days, (C) to the extent that ▇▇▇▇▇'▇ is
rating a securitization transaction into which a Serviced Pari Passu Loan is
deposited and such account relates to the related Serviced Whole Loan, "Aa3" by
Moody's, or, if not rated by Moody's, at least "Aa3" or its equivalent by
another nationally recognized statistical rating agency (which may include S&P,
Fitch and Moody's) if the deposits are to be held in such account 30 days or
more and (D) to the extent that DBRS is rating a securitization transaction into
which a Serviced Pari Passu Loan is deposited and such account relates to the
related Serviced Whole Loan, "AA (low)" by DBRS, or, if not rated by DBRS, at
least "AA (low)" or its equivalent by another nationally recognized statistical
rating agency (which may include S&P, Fitch and Moody's) if the deposits are to
be held in such account 30 days or more, or (ii) the short-term unsecured debt
obligations of which have a short-term rating of not less than (A) "A-1" from
S&P, (B) to the extent that ▇▇▇▇▇'▇ is rating a securitization transaction into
which a Serviced Pari Passu Loan is deposited and such account relates to the
related Serviced Whole Loan, "P-1" from Moody's, or, if not rated by Moody's, at
least "P-1" or its equivalent by another nationally recognized statistical
rating agency (which may include S&P, Fitch and Moody's) if the deposits are to
be held in such account for less than 30 days and (C) to the extent that DBRS is
rating a securitization transaction into which a Serviced Pari Passu Loan is
deposited and such account relates to the related Serviced Whole Loan, "R-1
(middle)" from DBRS, or, if not rated by DBRS, at least "R-1 (middle)" or its
equivalent by another nationally recognized statistical rating agency (which may
include S&P, Fitch and Moody's) if the deposits are to be held in such account
for less than 30 days, or such other account or accounts with respect to which
each of the Rating Agencies shall have confirmed in writing that the then
current rating assigned to any of the Certificates (and, in the case of an
account that relates to a Serviced Whole Loan, to any class of related Serviced
Companion Loan Securities) that are currently being rated by such Rating Agency
will not be qualified, downgraded or withdrawn by reason thereof, (b) a
segregated account or accounts maintained with Deutsche Bank (or any of its
wholly owned affiliates) so long as the unsecured debt obligations of the holder
of such account is rated at least (i) "A+" by S&P, with respect to its long term
unsecured debt obligations and "A-1" with respect to its short term unsecured
debt obligations, (ii) "A3" by Moody's (or, if not rated by Moody's, at least
"AA-" or its equivalent by another nationally recognized statistical rating
agency, which may include S&P, Fitch and ▇▇▇▇▇'▇), (iii) to the extent that
▇▇▇▇▇'▇ is rating a securitization transaction into which a Serviced Pari Passu
Loan is deposited and such account relates to the related Serviced Whole Loan,
"A1" by Moody's or, if not rated by Moody's, at least "Aa3" or its equivalent by
another nationally recognized statistical rating agency and (iv) to the extent
that DBRS is rating a securitization transaction into which a Serviced Pari
Passu Loan is deposited and such account relates to the related Serviced Whole
Loan, "AA (low)" by DBRS or, if not rated by DBRS, at least "AA (low)" or its
equivalent by another nationally recognized statistical rating agency, (c) a
segregated trust account or accounts maintained with the corporate trust
department of a federal or state chartered depository institution or trust
company that, in either case, has a combined capital and surplus of at least
$50,000,000 and has corporate trust powers, acting in its fiduciary capacity,
provided that any state chartered depository institution or trust company is
subject to regulation regarding fiduciary funds substantially similar to 12
C.F.R. ss. 9.10(b), or (d) an account or accounts maintained with KeyBank
National Association so long as (i) KeyBank's long term unsecured debt rating is
at ▇▇▇▇▇ "▇▇" from Moody's, "A" from S&P (and its short term unsecured debt
rating is at least A-1 from S&P) and, to the extent that Fitch is rating a
securitization transaction into which a Serviced Pari Passu Loan is deposited
and such account relates to the related Serviced Whole Loan, "A" from Fitch, (in
each case, if the deposits are to be held in the account for more than 30 days)
or (ii) KeyBank's short term deposit or short term unsecured debt rating is at
least "P-1" from Moody's, "A-1" from S&P and, to the extent that Fitch is rating
a securitization transaction into which a Serviced Pari Passu Loan is deposited
and such account relates to the related Serviced Whole Loan, "F-1" from Fitch
(in each case, if the deposits are to be held in the account for 30 days or
less). Eligible Accounts may bear interest. No Eligible Account shall be
evidenced by a certificate of deposit, passbook or other similar instrument.
"Eligible Investor": Any of (i) a Qualified Institutional Buyer that
is purchasing for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the offer, sale or transfer is
being made in reliance on Rule 144A, (ii) an Institutional Accredited Investor,
or (iii) in the case of the Regular Certificates (other than the ERISA
Restricted Certificates (without giving effect to clause (b)(ii) of such
definition)), in the case of ownership or transfer of an interest in any
Regulation S Book-Entry Certificate, a Person acquiring such interest pursuant
to Regulation S in accordance with all applicable procedures herein.
"Environmental Assessment": A "Phase I assessment" as described in,
and meeting the criteria of the American Society for Testing and Materials in
the case of Specially Serviced Mortgage Loans as to which the related Mortgaged
Property is a non-multifamily property, and including investigation of lead
based paint, radon and asbestos.
"Environmental Insurance Policy": With respect to any Mortgage Loan
or Serviced Whole Loan, the insurance policy covering Insured Environmental
Events that is maintained from time to time in respect of such Mortgage Loan or
Serviced Whole Loan or the related Mortgaged Property.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Prohibited Holder": As defined in Section 5.02(d)(i)(A).
"ERISA Restricted Certificate": Any Class L, Class M, Class N, Class
O, Class P, Class Q or Class T 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 (in the case of clause (ii), as evidenced by an Opinion of Counsel).
"Escrow Payment": Any payment received by the Servicer or the
Special Servicer for the account of any Mortgagor for application toward the
payment of real estate taxes, assessments, insurance premiums, ground lease
rents and similar items in respect of the related Mortgaged Property, including
amounts for deposit to any reserve account.
"Euroclear": The Euroclear System and its successors.
"Event of Default": One or more of the events described in Section
7.01(a).
"Excess Liquidation Proceeds": With respect to any Mortgage Loan
(and in the case of a Non-Serviced Mortgage Loan, to the extent received in
accordance with the related Co-Lender Agreement or Non-Serviced Mortgage Loan
Pooling Agreement) or Serviced Whole Loan, the excess of (i) Liquidation
Proceeds of that Mortgage Loan or Serviced Whole Loan or related REO Property
net of any related Liquidation Expenses, Advances and interest on Advances over
(ii) the amount that would have been received if payment in full had been made
with respect to such Mortgage Loan or Serviced Whole Loan on the Due Date
immediately following the date on which such proceeds were received. For the
avoidance of doubt, Excess Liquidation Proceeds allocable to any Serviced
Companion Loan shall not be assets of the Trust Fund, the Lower-Tier REMIC or
the Upper-Tier REMIC.
"Excess Liquidation Proceeds Reserve Account": The account, accounts
or sub-account created and maintained by the Trustee, which may be a sub-account
of the Distribution Account, pursuant to Section 3.04(c) in trust for the
Certificateholders and for the holders of any related Serviced Companion Loans,
which shall be entitled "▇▇▇▇▇ Fargo Bank, N.A., as Trustee, for the benefit of
Holders of GE Commercial Mortgage Corporation, Mortgage Pass-Through
Certificates, Series 2007-C1, Excess Liquidation Proceeds Reserve Account." Any
such account shall at all times be an Eligible Account or a sub-account of an
Eligible Account. The Excess Liquidation Proceeds Reserve Account shall be an
asset of the Lower-Tier REMIC.
"Exchange Act": The Securities Exchange Act of 1934, as amended from
time to time.
"▇▇▇▇▇▇ Mae": ▇▇▇▇▇▇ ▇▇▇ or any successor thereto.
"FDIC": Federal Deposit Insurance Corporation or any successor
thereto.
"FEMA": Federal Emergency Management Agency or any successor
thereto.
"Final Recovery Determination": A good faith reasonable
determination by the Special Servicer with respect to any Defaulted Mortgage
Loan or REO Property (other than a Mortgage Loan or REO Property, as the case
may be, that was purchased by a Mortgage Loan Seller pursuant to Section 3 of
the applicable Mortgage Loan Purchase Agreement, by the Directing
Certificateholder or the Special Servicer pursuant to Section 3.18(c), or by the
Special Servicer or the Servicer pursuant to Section 9.01 or, in the case of a
Serviced Whole Loan, a holder of any related Serviced Companion Loan or its
designee pursuant to the related Co-Lender Agreement) that there has been a
recovery of all Insurance Proceeds and Condemnation Proceeds, Liquidation
Proceeds, REO Revenue and other payments or recoveries that will ultimately be
recoverable.
"Fitch": Fitch, Inc. and its successors in interest.
"Floating Rate Account": Either of the Class A-MFL Floating Rate
Account Trust or the Class A-JFL Floating Rate Account, as applicable.
"Form 8-K" shall mean Exchange Act Form 8-K, as and to the extent
that such form is applicable for an asset-backed issuer to satisfy its reporting
requirements under the Exchange Act, and the rules and regulations promulgated
thereunder, including for purposes of filing current reports under Section 13 or
15(d) of the Exchange Act, filed pursuant to Rule 13a-11 or Rule 15d-11, and for
reports of nonpublic information required to be disclosed by Regulation FD (17
C.F.R. 243.100 and 243.101). For purposes of this Agreement, "Form 8-K" shall be
deemed to include any successor or equivalent Exchange Act form adopted by the
Commission.
"Form 8-K Disclosure Information": As defined in Section 11.09.
"Form 10-D" shall mean Exchange Act Form 10-D, as and to the extent
that such form is applicable for an asset-backed issuer to satisfy its reporting
requirements under the Exchange Act, and the rules and regulations promulgated
thereunder, including for purposes of filing distribution reports under Section
13 or 15(d) of the Exchange Act, filed pursuant to Rule 13a-17 or Rule 15d-17.
For purposes of this Agreement, "Form 10-D" shall be deemed to include any
successor or equivalent Exchange Act form adopted by the Commission.
"Form 10-K": Exchange Act Form 10-K, as and to the extent that such
form is applicable for an asset-backed issuer to satisfy its reporting
requirements under the Exchange Act, and the rules and regulations promulgated
thereunder, including for purposes of filing annual reports pursuant to Section
13 or 15(d) of the Exchange Act for which no other form is prescribed, as well
as for filing transition reports pursuant to Section 13 or 15(d) of the Exchange
Act. For purposes of this Agreement, "Form 10-K" shall be deemed to include any
successor or equivalent Exchange Act form adopted by the Commission.
"Four Seasons A Notes": Collectively, the two pari passu notes that
make up the Four Seasons Whole Loan.
"Four Seasons Co-Lender Agreement": That certain intercreditor and
servicing agreement, dated as of March 1, 2007, by and among the holders of the
Four Seasons Mortgage Loan and the Four Seasons Pari Passu Loan, in each case,
relating to the relative rights of such holders, as the same may be further
amended, modified or supplemented from time to time.
"Four Seasons Mortgage Loan": With respect to the Four Seasons Whole
Loan, the promissory note made by the related Mortgagor and secured by the
Mortgage on the Four Seasons Mortgaged Property in the original principal amount
of $175,000,000, which is included in the Trust and which is pari passu in right
of payment to the other Four Seasons A Note, as provided in the Four Seasons
Co-Lender Agreement, as from time to time amended, supplemented, modified or
replaced.
"Four Seasons Mortgaged Property": The property or properties which
secure the Four Seasons Whole Loan.
"Four Seasons Pari Passu Loan": For so long as the Four Seasons
Mortgage Loan or a successor REO Loan with respect to the Four Seasons Mortgage
Loan is part of the Mortgage Pool, the Four Seasons A Notes. The Four Seasons
Pari Passu Loan is not included in the Trust.
"Four Seasons Whole Loan": The Four Seasons Mortgage Loan, together
with the Four Seasons Pari Passu Loan. References herein to the Four Seasons
Whole Loan shall be construed to refer to the aggregate indebtedness under the
Four Seasons Mortgage Loan and the Four Seasons Pari Passu Loan.
"▇▇▇▇▇▇▇ Mac": ▇▇▇▇▇▇▇ Mac or any successor thereto.
"GACC": German American Capital Corporation.
"GACC Mortgage Loan": Any Mortgage Loan sold to the Depositor by
GACC.
"GECC": General Electric Capital Corporation.
"GECC Mortgage Loan": Any Mortgage Loan sold to the Depositor by
GECC.
"Grantor Trust": Either of the Class A-MFL Grantor Trust or the
Class A-JFL Grantor Trust, as applicable, the assets of which are the related
Grantor Trust Assets.
"Grantor Trust Assets": The two segregated pools of assets
consisting of the Class A-MFL Grantor Trust and the Class A-JFL Grantor Trust.
"Grantor Trust Provisions": Sections 671-679 of the Code and
Treasury Regulations Section 301.7701-4(c).
"Ground Lease": In the case of any Mortgage Loan for which the
related Mortgagor has a leasehold interest in the related Mortgaged Property,
the lease agreement creating such leasehold interest.
"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 federal, state or local environmental
related laws and regulations, (including any applicable laws of the Commonwealth
of Puerto Rico) and specifically including, without limitation, asbestos and
asbestos-containing materials, polychlorinated biphenyls, radon gas, petroleum
and petroleum products, urea formaldehyde and any substances classified as being
"in inventory," "usable work in process" or similar classification which would,
if classified as unusable, be included in the foregoing definition.
"Independent": When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Trustee, the Depositor, the
Servicer, the Special Servicer, the Directing Certificateholder, the holder of
any Serviced Companion Loan and any and all Affiliates thereof, (ii) does not
have any material direct financial interest in or any material indirect
financial interest in any of the Trustee, the Depositor, the Servicer, the
Special Servicer, the Directing Certificateholder, the holder of any Serviced
Companion Loan or any Affiliate thereof and (iii) is not connected with the
Trustee, the Depositor, the Servicer, the Special Servicer, the Directing
Certificateholder, the holder of any Serviced Companion Loan or any Affiliate
thereof as an officer, employee, promoter, underwriter, trustee, partner,
director or Person performing similar functions; provided, however, that a
Person shall not fail to be Independent of the Trustee, the Depositor, the
Servicer, the Special Servicer, the Directing Certificateholder, the holder of
any Serviced Companion Loan or any Affiliate thereof merely because such Person
is the beneficial owner of 1% or less of any Class of securities issued by the
Trustee, the Depositor, the Servicer, the Special Servicer, the Directing
Certificateholder, the holder of any Serviced Companion Loan or any Affiliate
thereof, as the case may be, provided, further, that such ownership constitutes
less than 1% of the total assets owned by such Person.
"Independent Contractor": Either (i) any Person that would be an
"independent contractor" with respect to the Lower-Tier REMIC within the meaning
of Section 856(d)(3) of the Code if the Lower-Tier REMIC were a real estate
investment trust (except that the ownership test set forth in that Section shall
be considered to be met by any Person that owns, directly or indirectly, 35% 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 be at no
expense to the Trustee, the Servicer, the holder of any Serviced Companion Loan
or the Trust, delivered to the Trustee and the Servicer), so long as the Trust
does not receive or derive any income from such Person and provided that the
relationship between such Person and the Lower-Tier REMIC is at arm's length,
all within the meaning of Treasury Regulations Section 1.856-4(b)(5) (except
that the Servicer or the Special Servicer shall not be considered to be an
Independent Contractor under the definition in this clause (i) unless an Opinion
of Counsel has been delivered to the Trustee (and, if any Serviced Whole Loan is
affected, to the holders of any related Serviced Companion Loan) to that effect)
or (ii) any other Person (including the Servicer and the Special Servicer) upon
receipt by the Trustee and the Servicer (and, if any Serviced Whole Loan is
affected, by the holders of any related Serviced Companion Loan) of an Opinion
of Counsel, which shall be at no expense to the Trustee, the Servicer, the Trust
Fund or the holder of any Serviced Companion Loan, 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 Certification Date": As defined in Section 2.02(b).
"Initial Purchasers": Banc of America Securities LLC and Deutsche
Bank Securities Inc.
"Institutional Accredited Investor": As defined in Section 5.02(b).
"Insurance Policy": With respect to any Mortgage Loan or Serviced
Whole Loan, any hazard insurance policy, flood insurance policy, title policy or
other insurance policy that is maintained from time to time in respect of such
Mortgage Loan or Serviced Whole Loan or the related Mortgaged Property.
"Insurance Proceeds": All proceeds paid under any Insurance Policy,
to the extent such proceeds are not applied to the restoration of the related
Mortgaged Property or released to the Mortgagor or any tenants or ground
lessors, in accordance with the Servicing Standard (or, with respect to a
Non-Serviced Mortgage Loan, to the extent received pursuant to the related
Co-Lender Agreement).
"Insured Environmental Event": As defined in Section 3.07(f).
"Interest Accrual Period": With respect to any Class of Regular
Certificates (other than the Class A-MFL or Class A-JFL Certificates), the Class
A-MFL Regular Interest and Class A-JFL Regular Interest or Uncertificated
Lower-Tier Interests and any Distribution Date, the period beginning on the
first day of the calendar month preceding the calendar month in which the
related Distribution Date occurs and ending on the last day of the calendar
month preceding the calendar month in which such Distribution Date occurs,
calculated assuming that each month has 30 days and each year has 360 days. With
respect to the Class A-MFL and Class A-JFL Certificates, interest shall be
calculated on an Actual/360 Basis and, for any Distribution Date, shall be
deemed to accrue during the period from and including the Distribution Date in
the month preceding the month in which the related Distribution Date occurs (or,
in the case of the first Distribution Date, the Closing Date to June 9, 2007) to
but excluding the related Distribution Date; provided, however, that if a Class
A-MFL Distribution Conversion has occurred, the Interest Accrual Period with
respect to the Class A-MFL Certificates shall be the same as the Interest
Accrual Period for the Class A-MFL Regular Interest and if a Class A-JFL
Distribution Conversion has occurred, the Interest Accrual Period with respect
to the Class A-JFL Certificates shall be the same as the Interest Accrual Period
for the Class A-JFL Regular Interest.
"Interest Distribution Amount": With respect to any Class of Regular
Certificates (other than the Class A-MFL and Class A-JFL Certificates) and the
Class A-MFL Regular Interest and Class A-JFL Regular Interest or the
Uncertificated Lower-Tier Interests for any Distribution Date, an amount equal
to the sum of the Distributable Certificate Interest and the Class Unpaid
Interest Shortfall with respect to such Class of Regular Certificates, Class
A-MFL Regular Interest, Class A-JFL Regular Interest or Uncertificated
Lower-Tier Interests for such Distribution Date and any Accrued Interest From
Recoveries for such Class, to the extent not previously paid for all prior
Distribution Dates.
"Interest Reserve Account": The trust account created and maintained
by the Trustee pursuant to Section 3.25 in the name of "▇▇▇▇▇ Fargo Bank, N.A.,
as Trustee, in trust for the registered holders of GE Commercial Mortgage
Corporation, Commercial Mortgage Pass-Through Certificates, Series 2007-C1,
Interest Reserve Account" or maintained as a sub-account of the Distribution
Account into which the amounts set forth in Section 3.25 shall be deposited
directly and which must at all times be an Eligible Account or a sub-account of
an Eligible Account. The Interest Reserve Account shall be an asset of the
Lower-Tier REMIC.
"Interest Reserve Loans": The Actual/360 Mortgage Loans.
"Interested Person": The Depositor, the Servicer, the Special
Servicer, any Independent Contractor engaged by the Special Servicer, any Holder
of a Certificate or any Affiliate of any such Person.
"Investment Account": As defined in Section 3.06(a).
"Investment Representation Letter": As defined in Section 5.02(b).
"JPMCC 2007-CIBC18 Pooling Agreement": The Pooling and Servicing
Agreement, dated as of March 7, 2007, among ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇ Commercial
Mortgage Securities Corp., as depositor, Capmark Finance Inc., as a master
servicer, Midland Loan Services, Inc., as a primary servicer, LNR Partners, Inc.
as a special servicer, ARCap Servicing, Inc., as a special servicer, and ▇▇▇▇▇
Fargo Bank, N.A., as trustee and paying agent, relating to the issuance of the
JPMCC Mortgage Pass-Through Certificates, Series 2007-CIBC18, as from time to
time amended, supplemented, modified or replaced.
"JPMCC 2007-CIBC18 Servicer": Capmark Finance Inc., or its successor
servicer appointed as a master servicer pursuant to the JPMCC 2007-CIBC18
Pooling Agreement or Midland Loan Services, Inc., or its successor primary
servicer appointed as a primary servicer pursuant to the JPMCC 2007-CIBC18
Pooling Agreement, as the context requires.
"JPMCC 2007-CIBC18 Special Servicer": For purposes of this
Agreement, and with respect to the Americold Portfolio Mortgage Loan, LNR
Partners, Inc., or its successor special servicer, appointed pursuant to the
JPMCC 2007-CIBC18 Pooling Agreement.
"JPMCC 2007-CIBC18 Trustee": ▇▇▇▇▇ Fargo Bank, N.A., as trustee
under the JPMCC 2007-CIBC18 Pooling Agreement.
"Late Collections": With respect to any Mortgage Loan or Serviced
Whole Loan, all amounts received thereon on or prior to the related
Determination Date (or the related grace period), whether as payments, Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds or otherwise, which
represent late payments or collections of principal or interest due in respect
of such Mortgage Loan or Serviced Whole Loan (without regard to any acceleration
of amounts due thereunder by reason of default) on a Due Date in a previous Due
Period and not previously recovered. With respect to any REO Loan, all amounts
received in connection with the related REO Property on or prior to the related
Determination Date (including any grace period), whether as Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds, REO Revenues or otherwise, which
represent late collections of principal or interest due or deemed due in respect
of such REO Loan or the predecessor Mortgage Loan or Serviced Whole Loan
(without regard to any acceleration of amounts due under the predecessor
Mortgage Loan or Serviced Whole Loan by reason of default) on a Due Date in a
previous Due Period and not previously recovered. The term "Late Collections"
shall specifically exclude Penalty Charges.
"Late Payment Charges": With respect to any Mortgage Loan or
Serviced Whole Loan, amounts due to the Servicer (which accrued on non-Specially
Serviced Mortgage Loans) or the Special Servicer (which accrued on Specially
Serviced Mortgage Loans), which represent charges for late payments paid by a
Mortgagor pursuant to the loan documents.
"LIBOR": With respect to the Class A-MFL and Class A-JFL
Certificates and each Interest Accrual Period, the rate for deposits in U.S.
Dollars, for a period equal to one month, which appears on the Dow ▇▇▇▇▇ Market
Service (formerly Telerate) Page 3750 as of 11:00 a.m., London time, on the
related LIBOR Determination Date. If such rate does not appear on Dow ▇▇▇▇▇
Market Service Page 3750, the rate for that Interest Accrual Period will be
determined on the basis of the rates at which deposits in U.S. Dollars are
offered by any four major reference banks in the London interbank market
selected by the Trustee to provide such bank's offered quotation of such rates
at approximately 11:00 a.m., London time, on the related LIBOR Determination
Date to prime banks in the London interbank market for a period of one month,
commencing on the first day of such Interest Accrual Period and in an amount
that is representative for a single such transaction in the relevant market at
the relevant time. The Trustee will request the principal London office of any
four major reference banks in the London interbank market selected by the
Trustee to provide a quotation of such rates, as offered by each such bank. If
at least two such quotations are provided, the rate for that Interest Accrual
Period will be the arithmetic mean of the quotations. If fewer than two
quotations are provided as requested, the rate for that Interest Accrual Period
will be the arithmetic mean of the rates quoted by major banks in New York City
selected by the Trustee, at approximately 11:00 a.m., New York City time, on the
LIBOR Determination Date with respect to such Interest Accrual Period for loans
in U.S. Dollars to leading European banks for a period equal to one month,
commencing on the LIBOR Determination Date with respect to such Interest Accrual
Period and in an amount that is representative for a single such transaction in
the relevant market at the relevant time. The Trustee will determine LIBOR for
each Interest Accrual Period and the determination of LIBOR by Trustee will be
binding absent manifest error.
"LIBOR Determination Date": (i) with respect to the initial Interest
Accrual Period, the date that is two LIBOR Business Days prior to the Closing
Date, and (ii) with respect to each Interest Accrual Period thereafter, the date
that is two LIBOR Business Days prior to the beginning of the related Interest
Accrual Period.
"LIBOR Business Day": Any day on which commercial banks are open for
international business (including dealings in U.S. Dollar deposits) in London,
England and New York, New York.
"Liquidation Event": With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final Recovery
Determination is made with respect to such Mortgage Loan; (iii) such Mortgage
Loan (or related REO Loan) is repurchased by the applicable Mortgage Loan Seller
pursuant to Section 6 of the related Mortgage Loan Purchase Agreement; (iv) such
Mortgage Loan is purchased by the Directing Certificateholder or the Special
Servicer pursuant to Section 3.18(c); (v) such Mortgage Loan is purchased by the
Special Servicer or the Servicer pursuant to Section 9.01(b) or acquired by the
Sole Certificateholder in exchange for its Certificates pursuant to Section
9.01(d); (vi) such Mortgage Loan is purchased by the related mezzanine lender
pursuant to the related intercreditor agreement; (vii) in the case of a Whole
Loan, such Mortgage Loan is purchased by a holder of a B Note or its designee
pursuant to the related Co-Lender Agreement; or (viii) in the case of a
Non-Serviced Whole Loan, such Mortgage Loan is purchased pursuant to the related
Non-Serviced Mortgage Loan Pooling 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 Servicer or the Special Servicer pursuant to
Section 9.01.
"Liquidation Expenses": All customary, reasonable and necessary "out
of pocket" costs and expenses incurred by the Special Servicer in connection
with the liquidation of any Specially Serviced Mortgage Loan or REO Property
pursuant to Section 3.09 or 3.18 (including, without limitation, legal fees and
expenses, committee or referee fees and, if applicable, brokerage commissions
and conveyance taxes).
"Liquidation Fee": A fee payable to the Special Servicer with
respect to (a) each Specially Serviced Mortgage Loan or REO Disposition as to
which the Special Servicer receives a full or discounted payoff with respect
thereto from the related Mortgagor or any Liquidation Proceeds with respect
thereto (in any case, other than amounts for which a Workout Fee has been paid,
or will be payable), equal to the product of the Liquidation Fee Rate and the
proceeds of such full or discounted payoff or the net Liquidation Proceeds (net
of the related Liquidation Expenses) related to such liquidated Specially
Serviced Mortgage Loan or REO Disposition, as the case may be; provided,
however, that no Liquidation Fee shall be payable with respect to clauses (iii),
(iv) (except to the extent set forth in clause (b) below), (v), (vi) (unless (A)
such Liquidation Fee is not specifically prohibited under the related mezzanine
intercreditor agreement (provided that any future permitted mezzanine debt will
require the payment of a Liquidation Fee, to the extent not prohibited by the
related Mortgage Loan documents if the Mortgage Loan is not purchased within 60
days of the date on which the related purchase option becomes exercisable) and
(B) the related Mortgage Loan is purchased by the related mezzanine lender more
than 60 days after the date the related purchase option becomes exercisable;
provided, however, that such Liquidation Fee shall in all circumstances be
payable by the related mezzanine lender and shall not, under any circumstance,
by payable out of the Trust), (vii) (unless the related Mortgage Loan is
purchased by the holder of the related B Note more than 60 days after the date
the related purchase option becomes exercisable; provided, however, that such
Liquidation Fee described in clause (vii) shall in all circumstances be payable
by the holder of the related Serviced B Note and shall not, under any
circumstances, be payable out of the Trust) or (viii) of the definition of
Liquidation Proceeds and (b) each Mortgage Loan repurchased by the Mortgage Loan
Seller after the expiration of the applicable time period provided for in the
first sentence of Section 2.03(b). In addition, no Liquidation Fee shall be
payable hereunder with respect to any Serviced Companion Loan that is the
subject of an Other Securitization, or a purchase or repurchase of such Serviced
Companion Loan under the related Serviced Companion Loan Securitization
Agreement (for the avoidance of doubt, a Liquidation Fee payable under this
Agreement, in accordance herewith, may be payable on the entire related Serviced
Whole Loan).
"Liquidation Fee Rate": A rate equal to 1.0%.
"Liquidation Proceeds": Cash amounts (other than Insurance Proceeds
and Condemnation Proceeds and REO Revenues) received by or paid to the Servicer
or the Special Servicer in connection with: (i) the liquidation of a Mortgaged
Property or other collateral constituting security for a Defaulted Mortgage
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 the terms and conditions of the
related Mortgage Note and Mortgage; (ii) the realization upon any deficiency
judgment obtained against a Mortgagor; (iii) the purchase of a Defaulted
Mortgage Loan by the Directing Certificateholder or the Special Servicer, as
applicable, pursuant to Section 3.18(c); (iv) the repurchase of a Mortgage Loan
(or related REO Loan) by the applicable Mortgage Loan Seller pursuant to Section
6 of the related Mortgage Loan Purchase Agreement; (v) the purchase of a
Mortgage Loan or REO Property by the Special Servicer or the Servicer pursuant
to Section 9.01; (vi) the purchase of a mortgage loan by the related mezzanine
lender pursuant to the related intercreditor agreement; (vii) in the case of a
Whole Loan, the purchase of the related Mortgage Loan by a holder of a related B
Note or its designee, as applicable, pursuant to the related Co-Lender
Agreement; or (viii) in the case of a Non-Serviced Whole Loan, the purchase of
the related Mortgage Loan pursuant to the related Non-Serviced Mortgage Loan
Pooling Agreement. With respect to a Non-Serviced Mortgage Loan, Liquidation
Proceeds shall also include any proceeds allocable to such Non-Serviced Mortgage
Loan denoted as "Liquidation Proceeds" under the related Non-Serviced Mortgage
Loan Pooling Agreement.
"LNR": LNR Partners, Inc., a Florida corporation, or its successors
in interest.
"LNR Cure Period": The period commencing on the date when the LNR
10-K Notice is delivered to LNR Partners, Inc. and ending at 5:00 p.m. (New York
time) on March 15th.
"LNR 10-K Notice": The notice to be delivered to LNR by the Trustee
pursuant to Section 11.16(e) hereof.
"Loan Group": Either Loan Group 1 or Loan Group 2. Each of the
Mortgage Loans will belong to either Loan Group 1 or 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, an amount equal to the sum of (a) the Loan Group 1 Principal
Shortfall for such Distribution Date, (b) that portion, if any, of the Scheduled
Principal Distribution Amount for such Distribution Date attributable to Loan
Group 1 and (c) that portion, if any, of the Unscheduled Principal Distribution
Amount for such Distribution Date attributable to Loan Group 1; provided, that
the Loan Group 1 Principal Distribution Amount for any Distribution Date shall
be reduced by the amount of any reimbursements of (i) Nonrecoverable Advances
plus interest on such Nonrecoverable Advances that are paid or reimbursed from
principal collections on the Group 1 Mortgage Loans in a period during which
such principal collections would have otherwise been included in the Loan Group
1 Principal Distribution Amount for such Distribution Date, (ii) Workout-Delayed
Reimbursement Amounts that were paid or reimbursed from principal collections on
the Group 1 Mortgage Loans in a period during which such principal collections
would have otherwise been included in the Loan Group 1 Principal Distribution
Amount for such Distribution Date and (iii) following the reimbursements
provided for in clauses (i) and (ii) above, the excess, if any of (A) the total
amount of Nonrecoverable Advances, plus interest on such Nonrecoverable
Advances, and Workout-Delayed Reimbursement Amounts, that would have been paid
or reimbursed from principal collections on the Group 2 Mortgage Loans as
provided for in clauses (i) and (ii) of the definition of "Loan Group 2
Principal Distribution Amount" had the Loan Group 2 Principal Distribution
Amount been sufficient to make such reimbursements in full, over (B) the Loan
Group 2 Principal Distribution Amount (prior to giving effect to clauses (i),
(ii) and (iii) of the definition of "Loan Group 2 Principal Distribution
Amount") for that Distribution Date (provided, further, that, with respect to
the amounts identified in clauses (i), (ii) and (iii) above, if any of such
amounts reimbursed from principal collections on the Group 1 Mortgage Loans are
subsequently recovered on the related Mortgage Loan, such recovery will be
applied to increase the Loan Group 1 Principal Distribution Amount for the
Distribution Date related to the period in which such recovery occurs).
"Loan Group 1 Principal Shortfall": For any Distribution Date after
the initial Distribution Date, the amount, if any, by which (a) the lesser of
(i) the Loan Group 1 Principal Distribution Amount for the prior Distribution
Date and (ii) the Certificate Balance of the Class A Certificates (other than
the Class A-1A Certificates), exceeds (b) the aggregate amount distributed in
respect of principal on the Class A Certificates (other than the Class A-1A
Certificates) on the preceding Distribution Date. The Loan Group 1 Principal
Shortfall for the initial Distribution Date will be zero.
"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, an amount equal to the sum of (a) the Loan Group 2 Principal
Shortfall for such Distribution Date, (b) that portion, if any, of the Scheduled
Principal Distribution Amount for such Distribution Date attributable to Loan
Group 2 and (c) that portion, if any, of the Unscheduled Principal Distribution
Amount for such Distribution Date attributable to Loan Group 2; provided, that
the Loan Group 2 Principal Distribution Amount for any Distribution Date shall
be reduced by the amount of any reimbursements of (i) Nonrecoverable Advances
plus interest on such Nonrecoverable Advances that are paid or reimbursed from
principal collections on the Group 2 Mortgage Loans in a period during which
such principal collections would have otherwise been included in the Loan Group
2 Principal Distribution Amount for such Distribution Date, (ii) Workout-Delayed
Reimbursement Amounts that were paid or reimbursed from principal collections on
the Group 2 Mortgage Loans in a period during which such principal collections
would have otherwise been included in the Loan Group 2 Principal Distribution
Amount for such Distribution Date and (iii) following the reimbursements
provided for in clauses (i) and (ii) above, the excess, if any of (A) the total
amount of Nonrecoverable Advances, plus interest on such Nonrecoverable Advances
and Workout-Delayed Reimbursement Amounts that would have been paid or
reimbursed from principal collections on the Group 1 Mortgage Loans as provided
for in clauses (i) and (ii) of the definition of "Loan Group 1 Principal
Distribution Amount" had the Loan Group 1 Principal Distribution Amount been
sufficient to make such reimbursements in full, over (B) the Loan Group 1
Principal Distribution Amount (prior to giving effect to clauses (i), (ii) and
(iii) of the definition of "Loan Group 1 Principal Distribution Amount") for
that Distribution Date (provided, further, that, with respect to the amounts
identified in clauses (i), (ii) and (iii) above, if any of such amounts
reimbursed from principal collections on the Group 2 Mortgage Loans are
subsequently recovered on the related Mortgage Loan, such recovery will be
applied to increase the Loan Group 2 Principal Distribution Amount for the
Distribution Date related to the period in which such recovery occurs).
"Loan Group 2 Principal Shortfall": For any Distribution Date after
the initial Distribution Date, the amount, if any, by which (a) the lesser of
(i) the Loan Group 2 Principal Distribution Amount for the prior Distribution
Date and (ii) the Certificate Balance of the Class A-1A Certificates, exceeds
(b) the aggregate amount distributed in respect of principal on the Class A-1A
Certificates on the preceding Distribution Date. The Loan Group 2 Principal
Shortfall for the initial Distribution Date will be zero.
"Loan Seller Sub-Servicer": A Servicing Function Participant or
Sub-Servicer required to be retained by the Servicer or the Special Servicer by
a Mortgage Loan Seller, as listed on Schedule 13 hereto.
"Loan-to-Value Ratio": With respect to any Mortgage Loan, as of any
date of determination, the fraction, expressed as a percentage, the numerator of
which is the scheduled principal balance of such Mortgage Loan at the time of
determination, and the denominator of which is the Original Value of the related
Mortgaged Property.
"Lower-Tier Distribution Account": The sub-account deemed to be a
part of the Distribution Account and maintained by the Trustee pursuant to
Section 3.04(b).
"Lower-Tier Distribution Amount": As defined in Section 4.01(b).
"Lower-Tier Principal Amount": The principal amount of any
Uncertificated Lower-Tier Interest outstanding as of any date of determination.
With respect to any Class of Uncertificated Lower-Tier Interests, (a) on or
prior to the first Distribution Date, an amount equal to the Original Lower-Tier
Principal Amount of such Class as specified in the Preliminary Statement hereto,
and (b) as of any date of determination after the first Distribution Date, as
permanently reduced by all distributions of principal deemed to have been made
in respect of such Class of Uncertificated Lower-Tier Interests on such
Distribution Date pursuant to Section 4.01(b), any Collateral Support Deficit
allocated thereto pursuant to Section 4.04, and as adjusted for any Certificate
Deferred Interest pursuant to Section 4.06 (but not less than zero).
"Lower-Tier REMIC": One of two separate REMICs comprising the Trust
Fund, the assets of which consist of the Mortgage Loans, any related REO
Property (to the extent of the Trust Fund's interest therein) or beneficial
interest in a Mortgaged Property acquired under a Non-Serviced Mortgage Loan
Pooling Agreement with respect thereto, such amounts with respect thereto as
shall from time to time be held in the Certificate Account, the REO Accounts (to
the extent of the Trust Fund's interest therein), if any, the Excess Liquidation
Proceeds Reserve Account, if any (to the extent of the Trust Fund's interest
therein) the Interest Reserve Account and the Lower-Tier Distribution Account,
and all other property included in the Trust Fund that is not in the Upper-Tier
REMIC or the Grantor Trusts.
"MAI": Member of the Appraisal Institute.
"Mall of America A Notes": Collectively, the five pari passu notes
that make up the Mall of America Whole Loan.
"Mall of America Co-Lender Agreement": That certain intercreditor
agreement, dated as of December 7, 2006, by and among the holders of the Mall of
America Mortgage Loan and the Mall of America Pari Passu Loans, in each case,
relating to the relative rights of such holders, as the same may be further
amended, modified or supplemented from time to time.
"Mall of America Mortgage Loan": With respect to the Mall of America
Whole Loan, the two promissory notes made by the related Mortgagor and secured
by the Mortgage on the Mall of America Mortgaged Property in the original
principal amount of $104,000,000, which are included in the Trust and which are
pari passu in right of payment to the other Mall of America A Notes as provided
in the Mall of America Co-Lender Agreement, as from time to time amended,
supplemented, modified or replaced.
"Mall of America Mortgaged Property": The property or properties
which secure the Mall of America Whole Loan.
"Mall of America Pari Passu Loan": For so long as the Mall of
America Mortgage Loan or a successor REO Loan with respect to the Mall of
America Mortgage Loan is part of the Mortgage Pool, the other Mall of America A
Notes. The Mall of America Pari Passu Loans are not included in the Trust.
"Mall of America Whole Loan": The Mall of America Mortgage Loan,
together with the Mall of America Pari Passu Loans. References herein to the
Mall of America Whole Loan shall be construed to refer to the aggregate
indebtedness under the Mall of America Mortgage Loan and the Mall of America
Pari Passu Loans.
"Material Breach": As defined in Section 2.03(b).
"Maturity Date": With respect to any Mortgage Loan or Serviced Whole
Loan as of any date of determination, the date on which the last payment of
principal is due and payable under the related Mortgage Note, after taking into
account all Principal Prepayments received prior to such date of determination,
but without giving effect to (i) any acceleration of the principal of such
Mortgage Loan by reason of default thereunder or (ii) any grace period permitted
by the related Mortgage Note.
"MERS": Mortgage Electronic Registration Systems, Inc.
"Monthly Payment": With respect to any Mortgage Loan, the scheduled
monthly payment of principal and/or interest on such Mortgage Loan, including
any Balloon Payment, which is payable by a Mortgagor from time to time under the
related Mortgage Note (as such terms may be changed or modified in connection
with a bankruptcy, insolvency or similar proceeding or by reason of any
modification or waiver pursuant to Section 3.20) and applicable law, without
regard to any acceleration of principal of such Mortgage Loan by reason of
default thereunder.
"Moody's": ▇▇▇▇▇'▇ Investors Service, Inc., and its successors in
interest.
"Mortgage": With respect to any Mortgage Loan, Serviced Companion
Loan, or Non-Serviced Pari Passu Loan, the mortgage, deed of trust or other
instrument securing a Mortgage Note and creating a lien on the fee or leasehold
interest in the related Mortgaged Property and, with respect to certain Mortgage
Loan, Serviced Companion Loan or Non-Serviced Pari Passu Loan and certain
relevant terms which are not specified in the mortgage or deed of trust, the
loan agreement for such Mortgage Loan, Serviced Companion Loan or Non-Serviced
Pari Passu Loan.
"Mortgage Deferred Interest": With respect to any Mortgage Loan as
of any Due Date that has been modified to reduce the rate at which interest is
paid currently below the Mortgage Rate and capitalize the amount of such
interest reduction, the excess, if any, of (a) interest accrued on the Stated
Principal Balance thereof during the one-month interest accrual period set forth
in the related Mortgage Note at the related Mortgage Rate over (b) the interest
portion of the related Monthly Payment, as so modified or reduced, or, if
applicable, Assumed Scheduled Payment due on such Due Date.
"Mortgage File": With respect to any Mortgage Loan or Serviced Whole
Loan, the following documents collectively (which in the case of a Serviced
Whole Loan, except for the Mortgage Note referred to in clause (i) of this
definition, relate to the entire Serviced Whole Loan):
(i) (A) the original Mortgage Note, or a lost note affidavit
with a customary indemnification provision with a copy of the
Mortgage Note bearing, or accompanied by, all prior and intervening
endorsements or assignments showing a complete chain of endorsement
or assignment from the originator of the Mortgage Loan to the
applicable Mortgage Loan Seller (or the most recent endorsee), and
further endorsed (at the direction of the Depositor given pursuant
to the applicable Mortgage Loan Purchase Agreement), on its face or
by allonge attached thereto, without recourse, to the order of the
Trustee in the following form: "Pay to the order of ▇▇▇▇▇ Fargo
Bank, N.A., as Trustee for the registered holders of GE Commercial
Mortgage Corporation, Commercial Mortgage Pass-Through Certificates,
Series 2007-C1, without recourse, representation or warranty,
express or implied" and (B) in the case of each Serviced Companion
Loan, a copy of the executed Mortgage Note for such Serviced Pari
Passu Loan or Serviced Companion Loan; provided, that with respect
to the Premier Self Storage - Toa Baja Mortgage Loan, to create the
security interest, the closing counsel for such Mortgage Loan will
notarize and retain copies of the constitution of mortgage, the
security agreement, the mortgage pledge and the Mortgage Note;
(ii) an original or copy of the Mortgage and originals or
copies of any intervening assignments thereof showing a complete
chain of assignment from the originator of the Mortgage Loan or
Serviced Whole Loan to the applicable Mortgage Loan Seller (or the
most recent assignee of record), in each case with evidence of
recording indicated thereon;
(iii) an original assignment of the Mortgage, in recordable
form, executed by the Mortgage Loan Seller (or the most recent
assignee of record) in blank or to "▇▇▇▇▇ Fargo Bank, N.A., as
Trustee for the registered holders of GE Commercial Mortgage
Corporation, Commercial Mortgage Pass-Through Certificates, Series
2007-C1"; provided, if the related Mortgage has been recorded in the
name of MERS or its designee, no Assignment of Mortgage in favor of
the Trustee will be required to be prepared or delivered and
instead, the Mortgage Loan Seller 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 necessary actions to
confirm that it is shown as) the owner of the related Mortgage Loan
on the records of MERS for purposes of the system of recording
transfers of beneficial ownership of mortgages maintained by MERS;
(iv) an original or copy of any related Assignment of Leases
(if such item is a document separate from the Mortgage) and the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage
Loan or Serviced Whole Loan to the applicable Mortgage Loan Seller,
in each case with evidence of recording thereon;
(v) an original assignment of any related Assignment of Leases
(if such item is a document separate from the Mortgage), in
recordable form, executed by the applicable Mortgage Loan Seller (or
the most recent assignee of record) in blank or to "▇▇▇▇▇ Fargo
Bank, N.A., as Trustee for the registered holders of GE Commercial
Mortgage Corporation, Commercial Mortgage Pass-Through Certificates,
Series 2007-C1"; provided, if the related assignment of Assignment
of Leases 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 Mortgage Loan
Seller 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 necessary actions to confirm that it is shown as) the
owner of the related assignment of Assignment of Leases on the
records of MERS for purposes of the system of recording transfers of
beneficial ownership of assignments of assignment of leases
maintained by MERS;
(vi) an original or copy of any related Security Agreement
and/or loan agreement (if such item is a document separate from the
Mortgage) and the originals or copies of any intervening assignments
thereof showing a complete chain of assignment from the originator
of the Mortgage Loan or Serviced Whole Loan to the applicable
Mortgage Loan Seller, in each case with evidence of recording
thereon (if recording is necessary to protect the rights of the
secured party); provided, if the related Security Agreement has been
recorded in the name of MERS or its designee, no assignment of
Security Agreement in favor of the Trustee will be required to be
prepared or delivered and instead, the Mortgage Loan Seller 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 necessary actions to confirm that it is shown as) the owner of
the related assignment of Security Agreement on the records of MERS
for purposes of the system of recording transfers of beneficial
ownership of security agreements maintained by MERS;
(vii) an original assignment of any related Security Agreement
and/or loan agreement (if such item is a document separate from the
Mortgage), in recordable form (if recording is necessary to protect
the rights of the secured party), executed by the applicable
Mortgage Loan Seller (or the most recent assignee of record) in
blank or to "▇▇▇▇▇ Fargo Bank, N.A., as Trustee for the registered
holders of GE Commercial Mortgage Corporation, Commercial Mortgage
Pass-Through Certificates, Series 2007-C1"; provided, if the related
Security Agreement has been recorded in the name of MERS or its
designee, no assignment of Security Agreement in favor of the
Trustee will be required to be prepared or delivered and instead,
the Mortgage Loan Seller 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 necessary actions to confirm that
it is shown as) the owner of the related assignment of Security
Agreement on the records of MERS for purposes of the system of
recording transfers of beneficial ownership of security agreements
maintained by MERS;
(viii) originals (with respect to the Mortgage Note) or copies
of all consolidation, assumption, modification, written assurance
and substitution agreements, with evidence of recording thereon,
where appropriate, in those instances where the terms or provisions
of the Mortgage, Mortgage Note or any related security document have
been consolidated or modified or the Mortgage Loan or Serviced Whole
Loan has been assumed;
(ix) the original lender's title insurance policy or a
duplicate original certified by the applicable title company or a
copy thereof in connection with the Mortgage Loan or Serviced Whole
Loan, together with all endorsements or riders that were issued with
or subsequent to the issuance of such policy, insuring the priority
of the Mortgage as a first lien on the Mortgagor's interest in the
Mortgaged Property, or if the policy has not yet been issued, an
original or copy of a marked-up written commitment, interim binder
or the pro forma title insurance policy 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;
(x) the original or to the extent the Servicer has the
original a copy of any guaranty of the obligations of the Mortgagor
under the Mortgage Loan or Serviced Whole Loan and any intervening
assignments;
(xi) all UCC Financing Statements (other than UCC-3
assignments to the Trustee) and continuation statements or copies
thereof, as filed, or in form that is complete and suitable for
filing or recording, as appropriate, or other evidence of filing
acceptable to the Trustee sufficient to perfect (and maintain the
perfection of) the security interest held by the originator of the
Mortgage Loan or Serviced Whole Loan (and each assignee of record
prior to the Trustee) in and to the personalty of the Mortgagor at
the Mortgaged Property, and to transfer such security interest to
the Trustee, or alternatively, a UCC acknowledgement form, UCC
search from a reputable search firm, printout from UCC 11, or
printouts from on-line confirmations; provided, if the related UCC
Financing Statement 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 Mortgage Loan
Seller 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 necessary actions to confirm that it is shown as) the
owner of the related UCC Financing Statement on the records of MERS
for purposes of the system of recording transfers of beneficial
ownership of UCC financing statements maintained by MERS; provided,
further, that with respect to the Premier Self Storage - Toa Baja
Mortgage Loan, to create the security interest, the closing counsel
for such Mortgage Loan will notarize and retain copies of the
constitution of mortgage, the security agreement, the mortgage
pledge and the Mortgage Note;
(xii) all UCC Financing Statements (including financing
statements in lieu of continuation statements and UCC-3 financing
statements) in favor of the Trustee in form that is complete and
suitable for filing or recording, as appropriate, acceptable to the
Trustee sufficient to assign the security interest held by the
originator of the Mortgage Loan or Serviced Whole Loan or its
assignee, or alternatively if the UCC Financing Statements in favor
of the Trustee have been filed or recorded, a UCC acknowledgement
form, UCC search from a reputable search firm, printout from UCC 11,
or printouts from on-line confirmations;
(xiii) the original power of attorney or a copy thereof (with
evidence of recording thereon) granted by the Mortgagor if the
Mortgage, Mortgage Note or other document or instrument referred to
above was not signed by the Mortgagor;
(xiv) with respect to the Mortgage Loans with Additional Debt
listed on Schedule 2 hereto, an original or copy of the
subordination agreement (if any), pursuant to which such Additional
Debt will be fully subordinated to such Mortgage Loan and copies of
the Additional Debt documents, if available;
(xv) with respect to any Mortgaged Property, the original
Environmental Insurance Policy, if applicable, or a duplicate
original or a copy thereof;
(xvi) with respect to any Mortgage Loan or Serviced Whole Loan
secured by a ground lease, an original or copy of the related ground
lease and an original or a copy of the related ground lease
estoppel;
(xvii) Reserved;
(xviii) an original or copy of any escrow agreement and/or
lock box agreement or cash management agreement;
(xix) the original (or copy, if the original is held by the
Servicer pursuant to Section 2.01(b)) of any letter of credit for
the benefit of the lender securing such Mortgage Loan, if any;
(xx) in the case of any Whole Loan, a copy of the related
Co-Lender Agreement;
(xxi) with respect to the Non-Serviced Mortgage Loans, a copy
of the related Non-Serviced Mortgage Loan Pooling Agreement;
(xxii) Reserved;
(xxiii) an original or copy of the environmental indemnity
from the related Mortgagor;
(xxiv) an original of the related guaranty of payment under
such Mortgage Loan, if any; and
(xxv) with respect to hospitality properties, a signed copy of
the franchise agreement (if any), franchisor comfort letter (if any)
and transfer documents for such comfort letter;
provided, however, that whenever the term "Mortgage File" is used to refer to
documents held by the Trustee, or a Custodian appointed thereby, such term shall
not be deemed to include such documents and instruments required to be included
therein unless they are actually received by the Trustee or a Custodian
appointed thereby; provided, further, however, that on the Closing Date, with
respect to item (iii), the related Mortgage Loan Seller has delivered to the
Trustee a copy of such Assignment of Mortgage in blank and has retained the
completed Assignment of Mortgage for recording as described below, unless such
Mortgage has been recorded in the name of MERS or its designee.
Notwithstanding the foregoing, with respect to the Skyline Portfolio
Mortgage Loan, the Pacific Shores Mortgage Loan, the Four Seasons Mortgage Loan,
the Mall of America Mortgage Loan and the Americold Portfolio Mortgage Loan, the
"Mortgage File" will consist of the original note (or lost note affidavit, if
applicable) and endorsement and assignments specified in clause (i) above, and a
copy of each additional document in the Mortgage File held by the BACM 2007-1
Trustee (with respect to the Skyline Portfolio Mortgage Loan and the Pacific
Shores Mortgage Loan), the CD 2007-CD4 Trustee (with respect to the Four Seasons
Mortgage Loan), the COMM 2006-C8 Trustee (with respect to the Mall of America
Mortgage Loan and the JPMCC 2007-CIBC18 Trustee (with respect to the Americold
Portfolio Mortgage Loan). However, if the custodian on any of the aforementioned
transactions is the Custodian in this transaction, copies do not need to be made
of the Mortgage Files for that particular transaction.
"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 documents contained in the related Mortgage File and
any related agreements.
"Mortgage Loan Checklist": The table of contents provided by each
Mortgage Loan Seller with each closing binder delivered to the Trustee pursuant
to Section 2.02.
"Mortgage Loan Purchase Agreement": Each of the agreements between
the Depositor and each Mortgage Loan Seller, relating to the transfer of all of
such Mortgage Loan Seller's right, title and interest in and to the related
Mortgage Loans.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred on
the Closing Date to the Trustee as part of the Trust Fund, attached hereto as
Exhibit B, which list sets forth the following information with respect to each
Mortgage Loan:
(i) the loan i.d. number (as specified in Annex A to the
Prospectus);
(ii) the Sponsor's name (as specified in Annex A to the
Prospectus);
(iii) the street address (including city, state and zip code)
and name of the related Mortgaged Property;
(iv) the Mortgage Rate in effect at origination;
(v) the Net Mortgage Rate in effect at the Cut-off Date;
(vi) the original principal balance;
(vii) the Cut-off Date Principal Balance;
(viii) the (a) original term to stated maturity, (b) remaining
term to stated maturity and (c) Maturity Date;
(ix) the original and remaining amortization terms;
(x) the amount of the Monthly Payment due on the first Due
Date following the Cut-off Date;
(xi) the applicable Administrative Fee Rate;
(xii) the applicable Servicing Fee Rate;
(xiii) whether the Mortgage Loan is an Actual/360 Mortgage
Loan;
(xiv) [Reserved];
(xv) [Reserved];
(xvi) whether such Mortgage Loan is secured by the related
Mortgagor's interest in a ground lease;
(xvii) identifying any Mortgage Loans with which such Mortgage
Loan is cross-defaulted or cross-collateralized;
(xviii) the originator of such Mortgage Loan;
(xix) whether such Mortgage Loan's Principal Balance is
secured by a letter of credit (excluding any letter of credit
provided in lieu of cash reserves);
(xx) whether such Mortgage Loan secures a hospitality
property; and
(xxi) the applicable Loan Group to which such Mortgage Loan
belongs.
Such Mortgage Loan Schedule shall also set forth the aggregate of
the amounts described under clause (vii) above 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": Each of: (1) General Electric Capital
Corporation, a Delaware corporation or its respective successors in interest,
(2) Bank of America, National Association, a national banking association, or
its respective successors in interest, (3) German American Capital Corporation,
a Maryland corporation, or its respective successors in interest and (4)
Barclays Capital Real Estate Inc., a Delaware corporation or its respective
successors in interest.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan, Serviced Pari Passu Loan or
Serviced Companion Loan, together with any rider, addendum or amendment thereto.
"Mortgage Pool": All of the Mortgage Loans and any successor REO
Loans, collectively. The Mortgage Pool does not include the Skyline Portfolio
Pari Passu Loans, the Pacific Shores Pari Passu Loans, the Four Seasons Pari
Passu Loan, the Mall of America Pari Passu Loans, the Americold Portfolio Pari
Passu Loans, the ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Pari Passu Loans, the ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇ ▇ Note, the Clarion LaGuardia Airport Hotel B Note or the Prospect
Plaza B Note or any REO Loan related to any of such Pari Passu Loans or B Notes.
"Mortgage Rate": With respect to: (i) any Mortgage Loan or Serviced
Companion Loan (or successor REO Loan) on or prior to its Maturity Date, the
annual rate at which interest is scheduled (in the absence of a default) to
accrue on such Mortgage Loan from time to time in accordance with the related
Mortgage Note and applicable law, exclusive of any default rate; (ii) any
Mortgage Loan or Serviced Companion Loan (or successor REO Loan) after its
Maturity Date, the annual rate described in clause (i) above determined without
regard to the passage of such Maturity Date; provided, however, that if any
Mortgage Loan does not accrue interest on the basis of a 360 day year consisting
of twelve 30-day months, then, solely for purposes of calculating Pass-Through
Rates, the Mortgage Rate of such Mortgage Loan for any one-month period
preceding a related Due Date will be the annualized rate at which interest would
have to accrue in respect of such Mortgage Loan on the basis of a 360-day year
consisting of twelve 30-day months in order to produce the aggregate amount of
interest actually accrued (exclusive of Default Interest) in respect of such
Mortgage Loan during such one-month period at the related Mortgage Rate;
provided, further, however, that with respect to each Interest Reserve Loan, the
Mortgage Rate for the one month period (A) preceding the Due Dates that occur in
January and February in any year which is not a leap year or preceding the Due
Date that occurs in February in any year which is a leap year (unless, in either
case, the related Distribution Date is the final Distribution Date) will be
determined exclusive of the Withheld Amounts from that month, and (B) preceding
the Due Date in March (or February, if the related Distribution Date is the
final Distribution Date) will be determined inclusive of the amounts withheld
from the immediately preceding February and January, if applicable.
"Mortgaged Property": The fee or leasehold interest, as applicable,
in the real property subject to the lien of a Mortgage together with
improvements thereon.
"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 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 Investment Earnings": With respect to either the Certificate
Account, the Floating Rate Accounts or the REO Account for any period from any
Distribution Date to the immediately succeeding P&I Advance Date, the amount, if
any, by which the aggregate of all interest and other income realized during
such period on funds relating to the Trust Fund held in such account, exceeds
the aggregate of all losses, if any, incurred during such period in connection
with the investment of such funds in accordance with Section 3.06.
"Net Investment Loss": With respect to either the Certificate
Account, the Floating Rate Accounts or any REO Account for any period from any
Distribution Date to the immediately succeeding P&I Advance Date, the amount by
which the aggregate of all losses, if any, incurred during such period in
connection with the investment of funds relating to the Trust Fund held in such
account in accordance with Section 3.06, exceeds the aggregate of all interest
and other income realized during such period on such funds.
"Net Mortgage Rate": With respect to any Mortgage Loan (or related
REO Loan), as of any date of determination, a rate per annum equal to the
related Mortgage Rate in effect from time to time, minus the Administrative Cost
Rate. For purposes of calculating the Pass-Through Rate for each Class of
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, whether agreed to by
the Special Servicer or resulting from a bankruptcy, insolvency or similar
proceeding involving the Mortgagor.
"Net Operating Income": With respect to any Mortgaged Property, for
any Mortgagor's fiscal year end, Net Operating Income will be calculated in
accordance with the standard definition of "Net Operating Income" endorsed and
put forth by the Mortgage Bankers Association and the CMSA.
"New Lease": Any lease of REO Property entered into at the direction
of the Special Servicer on behalf of the Lower-Tier REMIC, including any lease
renewed, modified or extended on behalf of the Trust and, in the case of any
Serviced Whole Loan or Serviced Companion Loan, if the Trust has the right to
renegotiate the terms of such lease.
"Non-Offered Certificates": The Class X-C, Class A-MFL, Class A-JFL,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class O, Class P, Class Q, Class T, Class R and Class LR Certificates.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance. Workout-Delayed Reimbursement Amounts shall
constitute a Nonrecoverable Advance only when the Person making such
determination in accordance with the procedures specified in the definition of
Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance, as applicable,
and taking into account factors such as all other outstanding Advances, either
(a) has determined in its reasonable judgment and in accordance with the
Servicing Standard that such Workout-Delayed Reimbursement Amounts, would not
ultimately be recoverable from Late Collections or any other recovery on or in
respect of the related Mortgage Loan or Serviced Whole Loan or REO Loan, or (b)
has determined in its reasonable judgment and in accordance with the Servicing
Standard that such Workout-Delayed Reimbursement Amount, along with any other
Workout-Delayed Reimbursement Amounts and Nonrecoverable Advances, would not be
recoverable from Late Collections (in respect of principal) and any other
collections or recovery (in respect of principal) in respect of the pool of
Mortgage Loans and REO Loans.
"Nonrecoverable P&I Advance": Any P&I Advance previously made or
proposed to be made in respect of a Mortgage Loan or REO Loan which, in the
reasonable judgment of the Servicer, the Special Servicer or the Trustee, as
applicable, will not be ultimately recoverable, together with any accrued and
unpaid interest thereon, from Late Collections or any other recovery on or in
respect of such Mortgage Loan, Serviced Whole Loan or REO Loan. The
determination by the Servicer, the Special Servicer or the Trustee, as
applicable, that the Servicer or the Trustee has made a Nonrecoverable P&I
Advance or that any proposed P&I Advance, if made, would constitute a
Nonrecoverable P&I Advance, shall be evidenced by an Officer's Certificate
delivered to the Trustee, the Directing Certificateholder, and the Depositor
(and the Special Servicer in the case of the Servicer, and the Servicer in the
case of the Special Servicer), in the case of the Servicer or the Special
Servicer, and to the Depositor and the Directing Certificateholder, in the case
of the Trustee. The Officer's Certificate shall set forth such determination of
nonrecoverability and the considerations of the Servicer, the Special Servicer
or the Trustee, as applicable, forming the basis of such determination (which
shall include but shall not be limited to information, to the extent available,
such as related income and expense statements, rent rolls, occupancy status,
property inspections, and shall include an Appraisal of the related Mortgage
Loan or Mortgaged Property, the cost of which Appraisal shall be advanced by the
Servicer as a Servicing Advance). The Trustee shall be entitled to conclusively
rely on the Servicer's determination that a P&I Advance is or would be a
Nonrecoverable Advance. Subject to Section 4.03(f), the Servicer and Trustee
shall conclusively rely on the Special Servicer's determination (or, subject to
the last sentence of this definition, a determination by a Non-Serviced Mortgage
Loan Servicer) that a P&I Advance is or would be a Nonrecoverable Advance;
provided, however, that in the absence of such determination, each other party
to this Agreement shall be entitled to make its own determination that any P&I
Advance previously made or proposed to be made is a Nonrecoverable Advance and
in no event shall an affirmative determination by the Special Servicer (or,
subject to the last sentence of this definition, a Non-Serviced Mortgage Loan
Servicer) that a previously made or proposed P&I Advance is or would be
ultimately recoverable, together with any accrued and unpaid interest thereon,
from Late Collections or any other recovery on or in respect of such Mortgage
Loan, Serviced Whole Loan or REO Loan be binding on any other party to this
Agreement. In addition, the Servicer will not be required to abide by any
determination of non-recoverability by a Non-Serviced Mortgage Loan Servicer
that is no longer an "approved" servicer by any of the rating agencies then
rating the Certificates.
"Nonrecoverable Servicing Advance": Any Servicing Advance previously
made or proposed to be made in respect of a Mortgage Loan (other than a
Non-Serviced Mortgage Loan) or Serviced Whole Loan or REO Property which, in the
reasonable judgment of the Servicer, the Special Servicer or the Trustee, as the
case may be, will not be ultimately recoverable, together with any accrued and
unpaid interest thereon, from Late Collections or any other recovery on or in
respect of such Mortgage Loan, Serviced Whole Loan or REO Property. The
determination by the Servicer, the Special Servicer or the Trustee, as the case
may be, that it has made a Nonrecoverable Servicing Advance or that any proposed
Servicing Advance, if made, would constitute a Nonrecoverable Servicing Advance,
shall be evidenced by an Officer's Certificate delivered to the Trustee, the
Servicer (in the case of the Special Servicer), the Special Servicer (in the
case of the Servicer), the Directing Certificateholder and the Depositor (and in
the case of a Serviced Whole Loan, the holders of any related Serviced Companion
Loan), in the case of the Servicer or the Special Servicer, and to the
Depositor, the Directing Certificateholder, the Servicer and the Special
Servicer (and in the case of a Serviced Whole Loan, the holders of any related
Serviced Companion Loan), in the case of the Trustee. The Officer's Certificate
shall set forth such determination of nonrecoverability and the considerations
of the Servicer, the Special Servicer or the Trustee, as applicable, forming the
basis of such determination (which shall include but shall not be limited to
information, to the extent available, such as related income and expense
statements, rent rolls, occupancy status and property inspections and shall
include an Appraisal of the related Mortgaged Property, the cost of which
Appraisal shall be advanced by the Servicer as a Servicing Advance). The Trustee
shall be entitled to conclusively rely on the Servicer's determination that a
Servicing Advance is or would be a Nonrecoverable Advance. The Servicer and
Trustee shall conclusively rely on the Special Servicer's determination that a
Servicing Advance is or would be a Nonrecoverable Advance; provided, however,
that in the absence of such determination, each other party to this Agreement
shall be entitled to make its own determination that any Servicing Advance
previously made or proposed to be made is a Nonrecoverable Advance and in no
event shall an affirmative determination by the Special Servicer that a
previously made or proposed Servicing Advance is or would be ultimately
recoverable, together with any accrued and unpaid interest thereon, from Late
Collections or any other recovery on or in respect of such Mortgage Loan,
Serviced Whole Loan or REO Loan be binding on any other party to this Agreement.
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class X-C, Class A-MFL, Class A-JFL, Class E, Class F, Class
G, Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class P, Class
Q, Class T, Class R or Class LR Certificate.
"Non-Serviced Mortgage Loan": Any of the Skyline Portfolio Mortgage
Loan, the Pacific Shores Mortgage Loan, the Four Seasons Mortgage Loan, the Mall
of America Mortgage Loan or the Americold Portfolio Mortgage Loan.
"Non-Serviced Mortgage Loan Co-Lender Agreement": Any of the Skyline
Portfolio Co-Lender Agreement, the Pacific Shores Co-Lender Agreement, the Four
Seasons Co-Lender Agreement, the Mall of America Co-Lender Agreement or the
Americold Portfolio Co-Lender Agreement, as applicable.
"Non-Serviced Mortgage Loan Pooling Agreement": With respect to the
Skyline Portfolio Mortgage Loan and the Pacific Shores Mortgage Loan, the BACM
2007-1 Pooling Agreement, with respect to the Four Seasons Mortgage Loan, the CD
2007-CD4 Pooling Agreement with respect to the Mall of America Mortgage Loan,
the COMM 2006-C8 Pooling Agreement and with respect to the Americold Portfolio
Mortgage Loan, the JPMCC 2007-CIBC18 Pooling Agreement.
"Non-Serviced Mortgage Loan Primary Servicing Fee": With respect to
a Non-Serviced Mortgage Loan, the servicer fee applicable to such Non-Serviced
Mortgage Loans as provided in the related Non-Serviced Mortgage Loan Pooling
Agreement, which is a fee that accrues at the related Non-Serviced Mortgage Loan
Primary Servicing Fee Rate.
"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 applicable Non-Serviced Mortgage Loan Pooling and Servicing Agreement,
which is a rate per annum equal to 0.01%, in the case of the Skyline Portfolio
Mortgage Loan, 0.01%, in the case of the Pacific Shores Mortgage Loan, 0.01%, in
the case of the Four Seasons Mortgage Loan, 0.02%, in the case of the Mall of
America Mortgage Loan, or 0.01%, in the case of the Americold Portfolio Mortgage
Loan.
"Non-Serviced Mortgage Loan Servicer": Any of the BACM 2007-1
Servicer, the CD 2007-CD4 Servicer, the COMM 2006-C8 Servicer, and/or the JPMCC
2007-CIBC18 Servicer, as the context may require.
"Non-Serviced Mortgage Loan Special Servicer": Any of the BACM
2007-1 Special Servicer, the CD 2007-CD4 Special Servicer, the COMM 2006-C8
Special Servicer, and/or the JPMCC 2007-CIBC18 Special Servicer, as the context
may require.
"Non-Serviced Mortgage Loan Trustee": Any of the BACM 2007-1
Trustee, the CD 2007-CD4 Trustee, the COMM 2006-C8 Trustee, and/or the JPMCC
2007-CIBC18 Trustee, as the context may require.
"Non-Serviced Mortgaged Property": Any of the Skyline Portfolio
Mortgaged Properties, the Pacific Shores Mortgaged Properties, the Four Seasons
Mortgaged Property, the Mall of America Mortgaged Property and/or the Americold
Portfolio Mortgaged Properties, as the context may require.
"Non-Serviced Pari Passu Loan": Any of the Skyline Portfolio Pari
Passu Loans, the Pacific Shores Pari Passu Loans, the Four Seasons Pari Passu
Loans, the Mall of America Pari Passu Loans and/or the Americold Portfolio Pari
Passu Loans, as the context may require.
"Non-Serviced Whole Loan": Any of the Skyline Portfolio Whole Loan,
the Pacific Shores Whole Loan, the Four Seasons Whole Loan, the Mall of America
Whole Loan and/or the Americold Portfolio Whole Loan, as the context may
require.
"Non-U.S. Person": Any Person (a) other than a U.S. Person, unless,
with respect to the Transfer of a Residual Certificate, (i) such Person holds
such Residual Certificate in connection with the conduct of a trade or business
within the United States and furnishes the Transferor and the Certificate
Registrar with an effective Internal Revenue Service Form W-8ECI (or successor
form), (ii) the Transferee delivers to both the Transferor and the Certificate
Registrar an opinion of a nationally recognized tax counsel to the effect that
such Transfer is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such Transfer of the Residual
Certificate will not be disregarded for federal income tax purposes, (b) who is
a U.S. Person if income of such Person with respect to such 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 (c) who is a U.S. Person that is treated as a partnership for federal
income tax purposes, any partner of which directly or indirectly (other than
through a U.S. corporation) is a Non-U.S. Person who does not meet clause (a)(i)
or (a)(ii) of this definition.
"Notional Amount": As of any date of determination: (i) with respect
to all of the Class X-C Certificates as a Class, the Class X-C Notional Amount
as of such date of determination; (ii) with respect to any Class X-C
Certificate, the product of the Percentage Interest evidenced by such
Certificate and the Class X-C Notional Amount as of such date of determination;
(iii) with respect to all of the Class X-P Certificates as a Class, the Class
X-P Notional Amount as of such date of determination, (iv) with respect to any
Class X-P Certificate, the product of the Percentage Interest evidenced by such
Certificate and the Class X-P Notional Amount as of such date of determination
and (v) with respect to any Component, as set forth in the definition of such
Component.
"Offered Certificates": The Class A, Class X-P, Class A-M, Class
A-J, Class B, Class C and Class D Certificates.
"Officer's Certificate": A certificate signed by a Servicing Officer
of the Servicer or the Special Servicer, as the case may be, or a Responsible
Officer of the Trustee or any Additional Servicer.
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be salaried counsel for the Depositor, the Servicer or the Special
Servicer, acceptable in form and delivered to the Trustee, except that any
opinion of counsel relating to (a) the qualification of the Upper-Tier REMIC or
Lower-Tier REMIC, (b) compliance with the REMIC Provisions, (c) qualification of
the Grantor Trust as a grantor trust, (d) the resignation of the Servicer, the
Special Servicer or the Depositor pursuant to Section 6.04 or (e) any opinion
with respect to enforceability, must be an opinion of counsel who is in fact
Independent of the Depositor, the Servicer or the Special Servicer, as
applicable.
"Option Price": As defined in Section 3.18(c).
"Original Certificate Balance": With respect to any Class of Regular
Certificates (other than the Class X Certificates), the initial aggregate
principal amount thereof as of the Closing Date, in each case as specified in
the Preliminary Statement.
"Original Lower-Tier Principal Amount": With respect to any Class of
Uncertificated Lower-Tier Interest, the initial principal amount thereof as of
the Closing Date, in each case as specified in the Preliminary Statement.
"Original Notional Amount": With respect to the Class X-C and Class
X-P Notional Amount, the initial Notional Amount thereof as of the Closing Date,
as specified in the Preliminary Statement.
"Original Value": The Appraised Value of a Mortgaged Property based
upon the Appraisal conducted in connection with the origination of the related
Mortgage Loan, Non-Serviced Whole Loan or Serviced Whole Loan.
"OTS": The Office of Thrift Supervision or any successor thereto.
"Other Pooling and Servicing Agreement": A pooling and servicing
agreement related to an Other Securitization.
"Other Securitization": Any commercial mortgage securitization trust
that holds a Serviced Companion Loan or Non-Serviced Pari Passu Loan or any
successor REO Loan with respect 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 Mortgage Loan or REO Loan, any advance made
by the Servicer or the Trustee, as applicable, pursuant to Section 4.03 or
Section 7.05.
"P&I Advance Date": The Business Day immediately prior to each
Distribution Date.
"P&I Advance Determination Date": With respect to any Distribution
Date, the second Business Day prior to such Distribution Date.
"Pacific Shores A Notes": Collectively, the two pari passu notes
that make up the Pacific Shores Whole Loan.
"Pacific Shores Co-Lender Agreement": That certain intercreditor and
servicing agreement, dated as of February 1, 2007, by and among the holders of
the Pacific Shores Mortgage Loan and the Pacific Shores Pari Passu Loans, in
each case, relating to the relative rights of such holders, as the same may be
further amended, modified or supplemented from time to time.
"Pacific Shores Mortgage Loan": With respect to the Pacific Shores
Whole Loan, the promissory note made by the related Mortgagor and secured by the
Mortgage on the Pacific Shores Mortgaged Property in the original principal
amount of $165,875,000, which is included in the Trust and which is pari passu
in right of payment to the other Pacific Shores A Note, as provided in the
Pacific Shores Co-Lender Agreement, as from time to time amended, supplemented,
modified or replaced.
"Pacific Shores Mortgaged Property": The property or properties
which secure the Pacific Shores Whole Loan.
"Pacific Shores Pari Passu Loan": For so long as the Pacific Shores
Mortgage Loan or a successor REO Loan with respect to the Pacific Shores
Mortgage Loan is part of the Mortgage Pool, the other Pacific Shores A Note. The
Pacific Shores Pari Passu Loan is not included in the Trust.
"Pacific Shores Whole Loan": The Pacific Shores Mortgage Loan,
together with the Pacific Shores Pari Passu Loan. References herein to the
Pacific Shores Whole Loan shall be construed to refer to the aggregate
indebtedness under the Pacific Shores Mortgage Loan and the Pacific Shores Pari
Passu Loan.
"Pari Passu Loan": Any of the Skyline Portfolio Pari Passu Loans,
the Pacific Shores Pari Passu Loan, the Four Seasons Pari Passu Loans, the Mall
of America Pari Passu Loans, the Americold Portfolio Pari Passu Loans or the ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Pari Passu Loans.
"Pass-Through Rate": With respect to any Distribution Date, any of
the Class A-1 Pass-Through Rate, the Class A-2 Pass-Through Rate, the Class A-M
Pass-Through Rate, the Class A-AB Pass-Through Rate, the Class A-4 Pass-Through
Rate, the Class A-1A Pass-Through Rate, the Class X-C Pass-Through Rate, the
Class X-P Pass-Through Rate, the Class A-M Pass-Through Rate, the Class A-MFL
Pass-Through Rate, the Class A-MFL Regular Interest Pass-Through Rate, the Class
A-J Pass-Through Rate, the Class A-JFL Pass-Through Rate, the Class A-JFL
Regular Interest Pass-Through Rate, the Class B Pass-Through Rate, the Class C
Pass-Through Rate, the Class D Pass-Through Rate, the Class E Pass-Through Rate,
the Class F Pass-Through Rate, the Class G Pass-Through Rate, the Class H
Pass-Through Rate, the Class J Pass-Through Rate, the Class K Pass-Through Rate,
the Class L Pass-Through Rate, the Class M Pass-Through Rate, the Class N
Pass-Through Rate, the Class O Pass-Through Rate, the Class P Pass-Through Rate,
the Class Q Pass-Through Rate and the Class T Pass-Through Rate. The
Pass-Through Rate of the Class X-P and Class X-C Certificates shall equal the
weighted average of the Class X-P Strip Rates and Class X-C Strip Rates,
respectively, for the Components for such Distribution Date (weighted on the
basis of the respective Notional Amounts of such Components outstanding
immediately prior to such Distribution Date).
"PCAOB": The Public Company Accounting Oversight Board.
"Penalty Charges": With respect to any Mortgage Loan (or successor
REO Loan), any amounts actually collected thereon from the Mortgagor that
represent Late Payment Charges or Default Interest, other than Prepayment
Premiums or Yield Maintenance Charges.
"Percentage Interest": As to any Certificate (other than the
Residual Certificates), the percentage interest evidenced thereby in
distributions required to be made with respect to the related Class. With
respect to any Regular Certificate, the percentage interest is equal to the
Denomination of such Certificate divided by the initial Certificate Balance or
Notional Amount, as applicable, of such Class of Certificates as of the Closing
Date. With respect to a Residual Certificate, the percentage interest is set
forth on the face thereof.
"Permitted Investments": Any one or more of the following
obligations or securities, regardless whether issued by the Depositor, the
Servicer, the Special Servicer or the Trustee or any of their respective
Affiliates and having the required ratings, if any, provided for in this
definition and which shall not be subject to liquidation prior to maturity:
(i) direct obligations of, and obligations fully guaranteed as
to timely payment of principal and interest by, the United States of
America, ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ Mac or any agency or instrumentality of
the United States of America, the obligations of which are backed by
the full faith and credit of the United States of America that
mature in one year or less after the date of issuance; provided that
any obligation of, or guarantee by, ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac, other
than an unsecured senior debt obligation of ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇
Mac, shall be a Permitted Investment only if such investment would
not, in and of itself, result in the downgrading, withdrawal or
qualification of the then-current rating assigned by each of S&P,
▇▇▇▇▇'▇ and (to the extent that a Serviced Pari Passu Loan has been
deposited into a commercial mortgage securitization that is rated by
Fitch or DBRS (and the particular related investment relates solely
to the related Serviced Whole Loan) Fitch or DBRS, as applicable, to
any Certificate (and, in the case of an investment that relates to a
Serviced Whole Loan, any class of related Serviced Companion Loan
Securities) as evidenced in writing;
(ii) time deposits, unsecured certificates of deposit, or
bankers' acceptances that mature in one year or less after the date
of issuance and are issued or held by any depository institution or
trust company (including the Trustee) incorporated or organized
under the laws of the United States of America or any State thereof
and subject to supervision and examination by federal or state
banking authorities, so long as the commercial paper or other
short-term debt obligations of such depository institution or trust
company are rated in the highest rating categories of each of S&P,
▇▇▇▇▇'▇ and (to the extent that a Serviced Pari Passu Loan has been
deposited into a commercial mortgage securitization that is rated by
▇▇▇▇▇'▇ or DBRS and the particular investment relates solely to the
related Serviced Whole Loan) Fitch or DBRS, as applicable, or such
other rating as would not result in the downgrading, withdrawal or
qualification of the then-current rating assigned by each such
Rating Agency to any Certificate (and in the case of an investment
that relates to a Serviced Whole Loan, any class of related Serviced
Companion Loan Securities), as evidenced in writing;
(iii) repurchase agreements or obligations with respect to any
security described in clause (i) above where such security has a
remaining maturity of one year or less and where such repurchase
obligation has been entered into with a depository institution or
trust company (acting as principal) described in clause (ii) above
that also has a long term unsecured debt rating of at least "A" by
S&P;
(iv) debt obligations bearing interest or sold at a discount
issued by any corporation incorporated under the laws of the United
States of America or any state thereof which mature in one year or
less from the date of issuance, which debt obligations are rated in
the highest rating categories of each of S&P, ▇▇▇▇▇'▇ and (to the
extent that a Serviced Pari Passu Loan has been deposited into a
commercial mortgage securitization that is rated by Fitch or DBRS
and the particular investment relates solely to the related Serviced
Whole Loan) Fitch or DBRS, as applicable, or such other rating as
would not result in the downgrading, withdrawal or qualification of
the then-current rating assigned by each such Rating Agency to any
Certificate (and in the case of an investment that relates to a
Serviced Whole Loan, any class of related Serviced Companion Loan
Securities) as specified in writing by each of such Rating Agencies;
provided, however, that securities issued by any particular
corporation will not be Permitted Investments to the extent that
investment therein will cause the then-outstanding principal amount
of securities issued by such corporation and held in the accounts
established hereunder to exceed 10% of the sum of the aggregate
principal balance and the aggregate principal amount of all
Permitted Investments in such accounts;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations) of any
corporation or other entity organized under the laws of the United
States or any state thereof payable on demand or on a specified date
maturing in one year or less after the date of issuance thereof and
which is rated in the highest rating category by each of S&P,
▇▇▇▇▇'▇ and (to the extent that a Serviced Pari Passu Loan has been
deposited into a commercial mortgage securitization that is rated by
Fitch or DBRS and the particular investment relates solely to the
related Serviced Whole Loan) Fitch or DBRS, as applicable, or such
other rating as would not result in the downgrading, withdrawal or
qualification of the then-current rating assigned by each such
Rating Agency to any Certificate (and in the case of an investment
that relates to a Serviced Whole Loan, any class of related Serviced
Companion Loan Securities) as specified in writing by each of such
Rating Agencies;
(vi) any money market funds, including those managed or
advised by the Trustee or its affiliates, rated in the highest
rating categories of each of S&P, ▇▇▇▇▇'▇ and (to the extent that a
Serviced Pari Passu Loan has been deposited into a commercial
mortgage securitization that is rated by Fitch or DBRS and the
particular investment relates to the related Serviced Whole Loan)
Fitch or DBRS, as applicable, or such other rating as would not
result in the downgrading, withdrawal or qualification of the
then-current rating assigned by each such Rating Agency to any
Certificate (and in the case of an investment that relates to a
Serviced Whole Loan, any class of related Serviced Companion Loan
Securities) as specified in writing by each of such Rating Agencies;
and
(vii) any other demand, money market or time deposit,
obligation, security or investment, (a) with respect to which each
of S&P, ▇▇▇▇▇'▇ and (to the extent that a Serviced Pari Passu Loan
has been deposited into a commercial mortgage securitization that is
rated by Fitch or DBRS and the particular investment relates solely
to the related Serviced Whole Loan) Fitch or DBRS, as applicable,
shall have confirmed in writing that such investment will not, in
and of itself, result in a downgrade, qualification or withdrawal of
the then-current rating of the Certificates (and in the case of an
investment that relates to a Serviced Whole Loan, any class of
related Serviced Companion Loan Securities) that are currently being
rated by such Rating Agency and (b) which qualifies as a "cash flow
investment" pursuant to Section 860G(a)(6) of the Code;
provided, however, that in each case (a) the investment shall have a
predetermined fixed dollar of principal due at maturity that cannot vary or
change, (b) no such investment shall have a rating from S&P with an "r"
highlighter and (c) any such investment that provides for a variable rate of
interest must have an interest rate that is tied to a single interest rate index
plus a fixed spread, if any, and move proportionately with such index; and
provided, further, however, that no such instrument shall be a Permitted
Investment (a) if such instrument evidences principal and interest payments
derived from obligations underlying such instrument and the interest payments
with respect to such instrument provide a yield to maturity at the time of
acquisition of greater than 120% of the yield to maturity at par of such
underlying obligations or (b) if such instrument may be redeemed at a price
below the purchase price; and provided, further, however, that no amount
beneficially owned by the Upper-Tier REMIC or the Lower-Tier REMIC (even if not
yet deposited in the Trust) may be invested in investments (other than money
market funds) treated as equity interests for federal income tax purposes,
unless the Servicer receives an Opinion of Counsel, at its own expense, to the
effect that such investment will not adversely affect the status of either the
Upper-Tier REMIC or the Lower-Tier REMIC under the Code or result in imposition
of a tax on either such REMIC. Permitted Investments that are subject to
prepayment or call may not be purchased at a price in excess of par.
"Permitted Transferee" Any Person who is a Qualified Institutional
Buyer.
"Person": Any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan": As defined in Section 5.02(c).
"Pool REO Account": A segregated custodial account or accounts
created and maintained by the Special Servicer pursuant to Section 3.16(b) on
behalf of the Trustee in trust for the Certificateholders, which shall be
entitled "LNR Partners, Inc., as Special Servicer, for the benefit of ▇▇▇▇▇
Fargo Bank, N.A., as Trustee, in trust for registered Holders of GE Commercial
Mortgage Corporation, Commercial Mortgage Pass-Through Certificates, Series
2007-C1, REO Account." Any such account or accounts shall be an Eligible
Account.
"Premier Self Storage - Toa Baja Mortgage Loan" means the Mortgage
Loan identified as Premier Self Storage - Toa Baja on Schedule I to this
Agreement.
"Prepayment Assumption": A "constant prepayment rate" of 0% used for
determining the accrual of original issue discount, market discount and premium,
if any, on the Certificates for federal income tax purposes.
"Prepayment Interest Excess": With respect to any Distribution Date,
the aggregate amount, with respect to all Mortgage Loans that were subject to
Principal Prepayment in full or in part, or as to which Insurance Proceeds and
Condemnation Proceeds were received by the Servicer or Special Servicer for
application to such Mortgage Loans, in each case after the Due Date in the month
of such Distribution Date and on or prior to the related Determination Date, the
amount of interest accrued at the Mortgage Rate for such Mortgage Loans on the
amount of such Principal Prepayments or Insurance Proceeds and Condemnation
Proceeds after the Interest Accrual Period relating to such Due Date and
accruing in the manner set forth in the loan documents relating to such Mortgage
Loans, to the extent such interest is collected by the Servicer or the Special
Servicer.
"Prepayment Interest Shortfall": With respect to any Distribution
Date, for each Mortgage Loan that was subject to a Principal Prepayment in full
or in part and which did not include a full month's interest, or as to which
Insurance Proceeds or Condemnation Proceeds, as applicable, were received by the
Servicer or Special Servicer for application to such Mortgage Loan, in each case
after the Determination Date in the calendar month preceding such Distribution
Date but prior to the Due Date in the related Due Period, the amount of interest
that would have accrued at the Net Mortgage Rate for such Mortgage Loan on the
amount of such Principal Prepayment, Insurance Proceeds or Condemnation Proceeds
during the period commencing on the date as of which such Principal Prepayment,
Insurance Proceeds or Condemnation Proceeds, as applicable, were applied to the
unpaid principal balance of the Mortgage Loan and ending on (and including) the
day immediately preceding such Due Date.
"Prepayment Premium": Any premium, penalty or fee (other than a
Yield Maintenance Charge) paid or payable, as the context requires, by a
Mortgagor in connection with a Principal Prepayment; provided that no amounts
shall be considered Prepayment Premiums until there has been a full recovery of
all principal, interest and other amounts due under the related Mortgage Loan or
Serviced Companion Loan.
"Prime Rate": The "Prime Rate" as published in the "Money Rates"
section of The Wall Street Journal (or, if such section or publication is no
longer available, such other comparable publication as determined by the Trustee
in its reasonable discretion) as may be in effect from time to time, or, if the
"Prime Rate" no longer exists, such other comparable rate (as determined by the
Trustee in its reasonable discretion) as may be in effect from time to time. The
Trustee shall notify in writing both the Servicer and the Special Servicer with
regard to any determination of the Prime Rate in accordance with the first
parenthetical in the preceding sentence.
"Principal Distribution Amount": With respect to any Distribution
Date, an amount equal to the sum of (a) the Principal Shortfall for such
Distribution Date, (b) the Scheduled Principal Distribution Amount for such
Distribution Date and (c) the Unscheduled Principal Distribution Amount for such
Distribution Date; provided, that the Principal Distribution Amount for any
Distribution Date shall be reduced by the amount of any reimbursements of (i)
Nonrecoverable Advances plus interest on such Nonrecoverable Advances 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 and (ii)
Workout-Delayed Reimbursement Amounts that were 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, in the case of
clause (i) and (ii) above, 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 payment of principal made by the
Mortgagor on a Mortgage Loan or Serviced Companion Loan which is received in
advance of its scheduled Due Date and which is not accompanied by an amount of
interest representing scheduled interest due on any date or dates in any month
or months subsequent to the month of prepayment.
"Principal Shortfall": For any Distribution Date after the initial
Distribution Date, the amount, if any, by which (a) the related Principal
Distribution Amount for the preceding Distribution Date, exceeds (b) the
aggregate amount distributed in respect of principal on the Class A, 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 T
Certificates and the Class A-MFL Regular Interest and Class A-JFL Regular
Interest for such preceding Distribution Date pursuant to Section 4.01(a) on
such preceding Distribution Date. The Principal Shortfall for the initial
Distribution Date will be zero. Notwithstanding the foregoing, for purposes of
determining the Loan Group 1 Principal Distribution Amount or the Loan Group 2
Principal Distribution Amount, the term "Principal Shortfall" shall refer to the
Loan Group 1 Principal Shortfall or the Loan Group 2 Principal Shortfall, as
applicable.
"Private Placement Memorandum": Collectively, the one or more
private placement memoranda, dated April 26, 2007 pursuant to which the Class
X-C, Class A-MFL, Class A-JFL, Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class O, Class P, Class Q, Class T, Class R
and Class LR Certificates will be offered for sale.
"Privileged Person": Any of the following: a party to this
Agreement, a Rating Agency, a designee of the Depositor (including any financial
market publisher), the initial Directing Certificateholder, the holder of (or
any participant in) any Pari Passu Loan, B Note or mezzanine loan and any other
person who delivers to the Trustee or a Servicer, as applicable, in the form
attached hereto as Exhibit K or Exhibits ▇-▇, ▇-▇ ▇▇ ▇-▇, as applicable(which
forms may also be located on, and may be submitted electronically via, the
Trustee's or a Servicer's, as applicable, internet website), a confidentiality
and indemnification agreement, which may include a certification that such
person is a Certificateholder, a Certificate Owner of a Certificate, or a
prospective purchaser of a Certificate.
"Prohibited Party": A party that is a proposed Servicing Function
Participant that the Servicer, the Special Servicer or Trustee, as applicable,
seeks to retain as a Servicing Function Participant and as to which such party
has actual knowledge that such party at any point failed to comply with its
Exchange Act or Regulation AB obligations with respect to the Subject
Securitization Transaction or any other securitization. In addition, a
Prohibited Party shall be any Person identified in writing by the Depositor to
the Servicer, the Special Servicer or the Trustee, as applicable, that seeks to
retain such Person as a Person which the Depositor has knowledge that such party
at any point failed to comply with its Exchange Act or Regulation AB obligations
with respect to the Subject Securitization Transaction or any other
securitization.
"Prospect Plaza B Note": With respect to the Prospect Plaza Whole
Loan, the related promissory note made by the related Mortgagor and secured by
the Mortgage on the Mortgaged Property identified as "Prospect Plaza" and
designated as Promissory B Note, which is not included in the Trust, which is
subordinated in right of payment to the Prospect Plaza Mortgage Loan as provided
in the Prospect Plaza Co-Lender Agreement.
"Prospect Plaza Co-Lender Agreement": With respect to the Prospect
Plaza Whole Loan, the related intercreditor agreement by and between the holders
of the Prospect Plaza Mortgage Loan and the Prospect Plaza B Note, relating to
the relative rights of such holders of the respective Prospect Plaza Mortgage
Loan and the Prospect Plaza B Note, as the same may be amended from time to time
in accordance with the terms thereof.
"Prospect Plaza Mortgage Loan": With respect to the Prospect Plaza
Whole Loan, the related promissory note made by the related Mortgagor and
secured by the Mortgage on the Mortgaged Property identified as "Prospect Plaza"
and designated as Promissory Note A, which is included in the Trust and which is
senior in right of payment to the Prospect Plaza B Note as provided in the
Prospect Plaza Co-Lender Agreement.
"Prospect Plaza Whole Loan": Collectively, the Prospect Plaza
Mortgage Loan and the Prospect Plaza B Note. References herein to the Prospect
Plaza Whole Loan shall be construed to refer to the aggregate indebtedness under
the Prospect Plaza Mortgage Loan and the Prospect Plaza B Note.
"Prospectus": The Prospectus dated April 26, 2007, as supplemented
by the Prospectus Supplement dated April 26, 2007, relating to the offering of
the Offered Certificates.
"Purchase Option": As defined in Section 3.18(c).
"Purchase Price": With respect to any Mortgage Loan (or related REO
Loan) to be purchased by a Mortgage Loan Seller pursuant to Section 6 of the
related Mortgage Loan Purchase Agreement, by the Directing Certificateholder or
the Special Servicer or any of their assignees pursuant to Section 3.18(c) prior
to the determination of the fair value of the related Mortgage Loan, by the
holders specified in Section 3.18(l) or by the Servicer or the Special Servicer
pursuant to Section 9.01(b), a price equal to:
(i) the outstanding principal balance of such Mortgage Loan as
of the date of purchase; plus
(ii) all accrued and unpaid interest on such Mortgage Loan at
the related Mortgage Rate in effect from time to time to but not
including the Due Date in the Due Period of purchase (or, if the
Mortgage Loan has an interest accrual period that ends on or after
such Due Date, through the end of such interest accrual period);
plus
(iii) all related Servicing Advances (including, in the case
of a Non-Serviced Mortgage Loan, the pro rata portion (based on the
related Stated Principal Balance) of a servicing advance made
pursuant to the related Non-Serviced Mortgage Loan Pooling Agreement
that is allocable to such Non-Serviced Mortgage Loan), or with
respect to the ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Mortgage Loan, the pro rata portion
(based on the related Stated Principal Balance) that are
unreimbursed out of collections on the related Mortgage Loan and
accrued and unpaid interest on related Advances at the Reimbursement
Rate, and unpaid Special Servicing Fees allocable to such Mortgage
Loan (and, in the case of any Non-Serviced Mortgage Loan, unpaid
fees payable to the related Non-Serviced Mortgage Loan Servicer, the
related Non-Serviced Mortgage Loan Special Servicer or the related
Non-Serviced Mortgage Loan Trustee allocable to such Mortgage Loan);
plus
(iv) any Liquidation Fee due pursuant to Section 3.11
hereunder that is allocable to such Mortgage Loan; plus
(v) if such Mortgage Loan (or related REO loan) is being
purchased by a Mortgage Loan Seller pursuant to Section 3 of the
applicable Mortgage Loan Purchase Agreement, to the extent not
otherwise included in the amount described in clause (iii) of this
definition, all reasonable out-of-pocket expenses reasonably
incurred or to be incurred by the Servicer, the Special Servicer,
the Depositor and the Trustee in respect of the Breach or Defect
giving rise to the repurchase obligation, including any expenses
arising out of the enforcement of the repurchase obligation,
including, without duplication, any amounts previously reimbursed
from the Certificate Account or if a Serviced Whole Loan is
involved, the related Serviced Whole Loan Custodial Account, in each
case, with interest thereon at the Reimbursement Rate.
With respect to any REO Property to be sold pursuant to Section 3.18(d), the
amount calculated in accordance with the preceding sentence in respect of the
related REO Loan.
"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(e).
"Qualified Institutional Buyer": As defined in Section 5.02(b).
"Qualified Insurer": (i) With respect to any Mortgage Loan (other
than any Non-Serviced Mortgage Loan) or Serviced Whole Loan, REO Loan or REO
Property, an insurance company or security or bonding company qualified to write
the related Insurance Policy in the relevant jurisdiction with (or whose
obligations are guaranteed or backed (pursuant to legally binding written
arrangements) by an entity with) a minimum claims paying ability rating of at
least (A) "A" by S&P and (B) "A3" by ▇▇▇▇▇'▇ (or, if not rated by ▇▇▇▇▇'▇, "A"
by S&P) or such higher rating as may be required in the loan documents, (ii)
with respect to the fidelity bond and errors and omissions Insurance Policy
required to be maintained pursuant to Section 3.07(c), an insurance company that
has (or whose obligations are guaranteed or backed (pursuant to legally binding
written arrangements) by an entity that has) a claims paying ability rated not
lower than (A) "A" by S&P and (B) "A2" by ▇▇▇▇▇'▇, (or, if not rated by ▇▇▇▇▇'▇,
"A-" by S&P or "A:V" by A-M Best) or, in the case of clauses (i) and (ii), such
other rating as each such Rating Agency shall have confirmed in writing will not
cause such Rating Agency to downgrade, qualify or withdraw the then current
rating assigned to any of the Certificates or Serviced Companion Loan Securities
that are then currently being rated by such Rating Agency.
"Qualified Substitute Mortgage Loan": A mortgage loan which must, on
the date of substitution, among other things: (i) have an outstanding Stated
Principal Balance, after application of all scheduled payments of principal and
interest due during or prior to the month of substitution, not in excess of the
Stated Principal Balance of the deleted Mortgage Loan as of the Due Date in the
calendar month during which the substitution occurs; (ii) have a Mortgage Rate
not less than the Mortgage Rate of the deleted Mortgage Loan; (iii) have the
same Due Date as the deleted Mortgage Loan; (iv) accrue interest on the same
basis as the deleted Mortgage Loan (for example, on the basis of a 360-day year
and the actual number of days elapsed); (v) have a remaining term to stated
maturity not greater than, and not more than two years less than, the remaining
term to stated maturity of the deleted Mortgage Loan; (vi) have an original
Loan-to-Value Ratio not higher than that of the deleted Mortgage Loan and a
current Loan-to-Value Ratio not higher than the then current Loan-to-Value Ratio
of the deleted Mortgage Loan; (vii) materially comply as of the date of
substitution with all of the representations and warranties set forth in the
applicable Mortgage Loan Purchase Agreement; (viii) have an Environmental
Assessment, which is less than 12 months old, that indicates no material adverse
environmental conditions with respect to the related Mortgaged Property and
which will be delivered as a part of the related Mortgage File; (ix) have an
original Debt Service Coverage Ratio of not less than the original Debt Service
Coverage Ratio of the deleted Mortgage Loan and a current Debt Service Coverage
Ratio of not less than the current Debt Service Coverage Ratio of the deleted
Mortgage Loan; (x) be determined by an Opinion of Counsel (at the applicable
Mortgage Loan Seller's expense) to be a "qualified replacement mortgage" within
the meaning of Section 860G(a)(4) of the Code; (xi) not have a maturity date
after the date two years prior to the Rated Final Distribution Date; (xii) not
be substituted for a deleted Mortgage Loan unless the Trustee has received prior
confirmation in writing by each Rating Agency that such substitution will not
result in the withdrawal, downgrade, or qualification of the rating assigned by
the Rating Agency to any Class of Certificates then rated by the Rating Agency
(the cost, if any, of obtaining such confirmation to be paid by the applicable
Mortgage Loan Seller); (xiii) have been approved by the Directing
Certificateholder in its sole discretion; (xiv) prohibit defeasance within two
years of the Closing Date; (xv) not be substituted for a deleted Mortgage Loan
if it would result in the termination of the REMIC status of either of the
REMICs established under this Agreement or the imposition of tax on either of
such REMICs other than a tax on income expressly permitted or contemplated to be
received by the terms of this Agreement, as determined by an Opinion of Counsel;
and (xvi) with respect to a Group 2 Mortgage Loan, be of the same property type
as such Mortgage Loan. In the event that one or more mortgage loans are
substituted for one or more deleted Mortgage Loans, then the amounts described
in clause (i) shall be determined on the basis of aggregate principal balances
and the rates described in clause (ii) above and the remaining term to stated
maturity referred to in clause (v) above shall be determined on a weighted
average basis (provided, that the Net Mortgage Rate for any Qualified Substitute
Mortgage Loan may not be less than the highest Pass-Through Rate of any
outstanding Class of Certificates that is not subject to a cap based on the
Weighted Average Net Mortgage Rate). When a Qualified Substitute Mortgage Loan
is substituted for a deleted Mortgage Loan, the applicable Mortgage Loan Seller
shall certify that the Mortgage Loan meets all of the requirements of the above
definition and shall send such certification to the Trustee.
"Rated Final Distribution Date": As to each Class of Certificates,
the Distribution Date in December 2049.
"Rating Agency": With respect to any matter relating to the
Certificates, each of S&P and ▇▇▇▇▇'▇ or their successors in interest and, with
respect to any matter relating to any class of Serviced Companion Loan
Securities, the applicable rating agencies then rating such Serviced Companion
Loan Securities. References herein to the highest long-term unsecured debt
rating category of a Rating Agency shall mean "AAA" and "Aaa" with respect to
S&P and ▇▇▇▇▇'▇, respectively, and in the case of any other rating agency shall
mean its highest rating category without regard to any plus or minus, numerical
or other qualification. If no such rating agency nor any successor remains in
existence, "Rating Agency" shall be deemed to refer to such nationally
recognized statistical rating agency or other comparable Person designated by
the Depositor, notice of which designation shall be given to the Trustee and the
Servicer, and specific ratings of S&P and ▇▇▇▇▇'▇ herein referenced shall be
deemed to refer to the equivalent ratings of the party so designated.
"Rating Agency Trigger Event": The reduction of the Class A-MFL or
Class A-JFL Swap Counterparty's long-term ratings below "A-" by S&P or "A-" by
Fitch (or if not rated by Fitch, the rating of the credit support provider of
the applicable Swap Counterparty is reduced below "A-" by Fitch) for the related
Swap Contract.
"Record Date": With respect to any Distribution Date, the last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"Registrar Office": As defined in Section 5.02(a).
"Regular Certificate": Any of the Class A-1, Class ▇-▇, ▇▇▇▇▇ ▇-▇,
Class A-AB, Class A-4, Class A-1A, Class X-P, Class X-C, Class A-M, Class A-MFL,
Class A-J, Class A-JFL, 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 T Certificates.
"Regulation AB": Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ▇▇.▇▇. 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 S": Regulation S under the Securities Act.
"Regulation S-K": Regulation S-K under the Securities Act.
"Regulation S Book-Entry Certificates": With respect to any Class of
Certificates offered and sold outside of the United States in reliance on
Regulation S, a single Book-Entry Certificate, in definitive, fully registered
form, without interest coupons.
"Regulation S Investor": With respect to a transferee of a
Regulation S Book Entry Certificate, a transferee that acquires such Certificate
pursuant to Regulation S.
"Reimbursement Rate": The rate per annum applicable to the accrual
of interest on Servicing Advances in accordance with Section 3.03(e) and P&I
Advances in accordance with Section 4.03(d), which rate per annum shall equal
the Prime Rate and shall be compounded monthly.
"Related Certificates," "Related Uncertificated Lower-Tier Interest"
and "Related Component": For the following Classes of Uncertificated Lower-Tier
Interests, the related Class of Certificates or the Class A-MFL Regular Interest
or Class A-JFL Regular Interest and related Components set forth below; for the
following Classes of Certificates or the Class A-MFL Regular Interest or Class
A-JFL Regular Interest, the related Class of Uncertificated Lower-Tier Interest
and related Components set forth below; and for the following Components, the
related Class of Certificates or the Class A-MFL Regular Interest or Class A-JFL
Regular Interest and Class of Uncertificated Lower-Tier Interest set forth
below:
Related Certificate Related Uncertificated Lower-Tier Interest Related Component
----------------------------------------------------------------------------------------------------------------------
Class A-1 Certificate Class LA-1-1 Uncertificated Lower-Tier Interest Class A-1-1 Component
Class LA-1-2 Uncertificated Lower-Tier Interest Class A-1-2 Component
Class LA-1-3 Uncertificated Lower-Tier Interest Class A-1-3 Component
Class LA-1-4 Uncertificated Lower-Tier Interest Class A-1-4 Component
Class A-2 Certificate Class LA-2-1 Uncertificated Lower-Tier Interest Class A-2-1 Component
Class LA-2-2 Uncertificated Lower-Tier Interest Class A-2-2 Component
Class LA-2-3 Uncertificated Lower-Tier Interest Class A-2-3 Component
Class LA-2-4 Uncertificated Lower-Tier Interest Class A-2-4 Component
Class LA-2-5 Uncertificated Lower-Tier Interest Class A-2-5 Component
Class LA-2-6 Uncertificated Lower-Tier Interest Class A-2-6 Component
Class A-3 Certificate Class LA-3-1 Uncertificated Lower-Tier Interest Class A-3-1 Component
Class LA-3-2 Uncertificated Lower-Tier Interest Class A-3-2 Component
Class LA-3 Uncertificated Lower-Tier Interest Class A-M Component
Class A-AB Certificate Class LA-AB Uncertificated Lower-Tier Interest Class A-AB Component
Class A-4 Certificate Class LA-4-1 Uncertificated Lower-Tier Interest Class A-4-1 Component
Class LA-4-2 Uncertificated Lower-Tier Interest Class A-4-2 Component
Class LA-4-3 Uncertificated Lower-Tier Interest Class A-4-3 Component
Class LA-4-4 Uncertificated Lower-Tier Interest Class A-4-4 Component
Class LA-4-5 Uncertificated Lower-Tier Interest Class A-4-5 Component
Class LA-4-6 Uncertificated Lower-Tier Interest Class A-4-6 Component
Class A-1A Certificate Class LA-1A-1 Uncertificated Lower-Tier Interest Class A-1A-1 Component
Class LA-1A-2 Uncertificated Lower-Tier Interest Class A-1A-2 Component
Class LA-1A-3 Uncertificated Lower-Tier Interest Class A-1A-3 Component
Class LA-1A-4 Uncertificated Lower-Tier Interest Class A-1A-4 Component
Class LA-1A-5 Uncertificated Lower-Tier Interest Class A-1A-5 Component
Class LA-1A-6 Uncertificated Lower-Tier Interest Class A-1A-6 Component
Class LA-1A-7 Uncertificated Lower-Tier Interest Class A-1A-7 Component
Class LA-1A-8 Uncertificated Lower-Tier Interest Class A-1A-8 Component
Class LA-1A-9 Uncertificated Lower-Tier Interest Class A-1A-9 Component
Class LA-1A-10 Uncertificated Lower-Tier Interest Class A-1A-10 Component
Class LA-1A-11 Uncertificated Lower-Tier Interest Class A-1A-11 Component
Class LA-1A-12 Uncertificated Lower-Tier Interest Class A-1A-12 Component
Class LA-1A-13 Uncertificated Lower-Tier Interest Class A-1A-13 Component
Class LA-1A-14 Uncertificated Lower-Tier Interest Class A-1A-14 Component
Class LA-1A-15 Uncertificated Lower-Tier Interest Class A-1A-15 Component
Class A-M Certificate Class LA-M Uncertificated Lower-Tier Interest Class A-M Component
Class A-MFL Regular Interest Class LA-MFL Uncertificated Lower-Tier Interest Class A-MFL Component
Class A-J Certificate Class LA-J Uncertificated Lower-Tier Interest Class A-J Component
Class A-JFL Regular Interest Class LA-JFL Uncertificated Lower-Tier Interest Class A-JFL Component
Class B Certificate Class LB Uncertificated Lower-Tier Interest Class B Component
Class C Certificate Class LC Uncertificated Lower-Tier Interest Class C Component
Class D Certificate Class LD-1 Uncertificated Lower-Tier Interest Class D-1 Component
Class LD-2 Uncertificated Lower-Tier Interest Class D-2 Component
Class E Certificate Class LE-1 Uncertificated Lower-Tier Interest Class E-1 Component
Class LE-2 Uncertificated Lower-Tier Interest Class E-2 Component
Class LE-3 Uncertificated Lower-Tier Interest Class E-3 Component
Class F Certificate Class LF-1 Uncertificated Lower-Tier Interest Class F-1 Component
Class LF-2 Uncertificated Lower-Tier Interest Class F-2 Component
Class G Certificate Class LG-1 Uncertificated Lower-Tier Interest Class G-1 Component
Class LG-2 Uncertificated Lower-Tier Interest Class G-2 Component
Class LG-3 Uncertificated Lower-Tier Interest Class G-3 Component
Class H Certificate Class LH-1 Uncertificated Lower-Tier Interest Class H-1 Component
Class LH-2 Uncertificated Lower-Tier Interest Class H-2 Component
Class J Certificate Class LJ-1 Uncertificated Lower-Tier Interest Class J-1 Component
Class LJ-2 Uncertificated Lower-Tier Interest Class J-1 Component
Class K Certificate Class LK-1 Uncertificated Lower-Tier Interest Class K-1 Component
Class LK-2 Uncertificated Lower-Tier Interest Class K-2 Component
Class L Certificate Class LL-1 Uncertificated Lower-Tier Interest Class L-1 Component
Class LL-2 Uncertificated Lower-Tier Interest Class L-2 Component
Class M Certificate Class LM Uncertificated Lower-Tier Interest Class M Component
Class N Certificate Class LN Uncertificated Lower-Tier Interest Class N Component
Class O Certificate Class LO Uncertificated Lower-Tier Interest Class O Component
Class P Certificate Class LP Uncertificated Lower-Tier Interest Class P Component
Class Q Certificate Class LQ Uncertificated Lower-Tier Interest Class Q Component
Class T Certificate Class LT Uncertificated Lower-Tier Interest Class T Component
"Release Date": The date that is 40 days after the later of (i) the
commencement of the offering of the Certificates and (ii) the Closing Date.
"Relevant Servicing Criteria": The Servicing Criteria with respect
to commercial mortgage-backed securities transactions taken as a whole
involving, and applicable to, each Reporting Servicer (as set forth, with
respect to the Servicer, the Special Servicer and the Trustee, on Schedule 10
attached hereto). For clarification purposes, multiple Reporting Servicers can
have responsibility for the same Relevant Servicing Criteria and some of the
Servicing Criteria will not be applicable to certain Reporting Servicers. With
respect to a Servicing Function Participant engaged by the Trustee, the Servicer
or the Special Servicer, the term "Relevant Servicing Criteria" refers to the
items of the Relevant Servicing Criteria applicable to the Trustee, the Servicer
or the Special Servicer that engaged such Servicing Function Participant that
are applicable to such Servicing Function Participant based on the functions it
has been engaged to perform.
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code (or any successor thereto).
"REMIC Provisions": The provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and temporary and final Treasury regulations (or proposed
regulations that would apply by reason of their proposed effective date to the
extent not inconsistent with temporary or final regulations) and any rulings
promulgated thereunder, as the foregoing may be in effect from time to time.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code.
"REO Account": The Pool REO Account and/or a Whole Loan REO Account,
as applicable.
"REO Acquisition": The acquisition for federal income tax purposes
of any REO Property pursuant to Section 3.09.
"REO Disposition": The sale or other disposition of the REO Property
pursuant to Section 3.18(g).
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The Mortgage Loan deemed for purposes hereof to be
outstanding with respect to each REO Property (including the Trust's beneficial
interest in a Mortgaged Property acquired pursuant to a Non-Serviced Mortgage
Loan Pooling Agreement or in the case of a Mortgage Loan included in a Serviced
Whole Loan, any of the Mortgage Loan or any Serviced Companion Loan comprising
such Serviced Whole Loan). Each REO Loan (including the Trust's beneficial
interest in a Mortgaged Property acquired pursuant to a Non-Serviced Mortgage
Loan Pooling Agreement) shall be deemed to be outstanding for so long as the
related Trust's interest in the REO Property remains part of the Lower-Tier
REMIC and provides for Assumed Scheduled Payments on each Due Date therefor, and
otherwise has the same terms and conditions as its predecessor Mortgage Loan or
Serviced Companion Loan, including, without limitation, with respect to the
calculation of the Mortgage Rate in effect from time to time (such terms and
conditions to be applied without regard to the default on such predecessor
Mortgage Loan or Serviced Companion Loan). Each REO Loan shall be deemed to have
an initial outstanding principal balance and Stated Principal Balance equal to
the outstanding principal balance and Stated Principal Balance, respectively, of
its predecessor Mortgage Loan or Serviced Companion Loan as of the date of the
related REO Acquisition (or acquisition pursuant to a Non-Serviced Mortgage Loan
Pooling Agreement). All amounts due and owing in respect of the predecessor
Mortgage Loan or Serviced Companion Loan as of the date of the related REO
Acquisition (or acquisition pursuant to a Non-Serviced Mortgage Loan Pooling
Agreement), including, without limitation, accrued and unpaid interest, shall
continue to be due and owing in respect of an REO Loan. All amounts payable or
reimbursable to the Servicer, the Special Servicer or the Trustee, as
applicable, in respect of the predecessor Mortgage Loan or Serviced Companion
Loan as of the date of the related REO Acquisition, including, without
limitation, any unpaid Special Servicing Fees and Servicing Fees and any
unreimbursed Advances, together with any interest accrued and payable to the
Servicer or the Special Servicer or to the Trustee, as applicable, in respect of
such Advances in accordance with Section 3.03(e) or Section 4.03(d), shall
continue to be payable or reimbursable to the Servicer, the Special Servicer or
the Trustee, as applicable, in respect of an REO Loan. In addition,
Workout-Delayed Reimbursement Amounts and Nonrecoverable Advances with respect
to such REO Loan, in each case, that were paid or reimbursed from 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," "Loan Group 1 Principal
Distribution Amount" or "Loan Group 2 Principal Distribution Amount" shall be
deemed outstanding until recovered or until a Final Recovery Determination is
made. Collections in respect of each REO Loan (exclusive of the amounts to be
applied to the payment of, or to be reimbursed to the Servicer or the Special
Servicer for the payment of, the costs of operating, managing, selling, leasing
and maintaining the related REO Property) shall be treated: first, as
reimbursement to the Servicer, Special Servicer or Trustee, as applicable, for
any unreimbursed Advance with respect to such REO Loan or related Mortgage Loan;
second, as a recovery of Workout-Delayed Reimbursement Amounts and
Nonrecoverable Advances with respect to such REO Loan, in each case 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 in the definition of "Principal Distribution Amount," "Loan Group 1
Principal Distribution Amount" or "Loan Group 2 Principal Distribution Amount";
third, 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 related to the Determination Date, on or prior to which such collections
were made; fourth, as a recovery of principal of such REO Loan to the extent of
its entire unpaid principal balance; and fifth, in accordance with the Servicing
Standard of the Servicer or Special Servicer, as applicable, as a recovery of
any other amounts due and owing in respect of such REO Loan, including, without
limitation, Yield Maintenance Charges and Penalty Charges and other amounts, in
that order; provided, however, that the treatment of the foregoing amounts of a
Whole Loan shall be subject to the terms of the related Co-Lender Agreement and,
in the case of a Non-Serviced Whole Loan, the related Non-Serviced Mortgage Loan
Pooling Agreement.
"REO Loan Accrual Period": With respect to any REO Loan and any Due
Date therefor, the one-month period immediately preceding such Due Date.
"REO Property": A Mortgaged Property (other than a Mortgaged
Property securing a Non-Serviced Mortgage Loan) acquired by the Special Servicer
on behalf of, and in the name of, the Trustee, or a nominee of the Trustee for
the benefit of the Certificateholders and the Trustee (as holder of the
Uncertificated Lower-Tier Interests and the Class A-MFL Regular Interest and
Class A-JFL Regular Interest) (and, in the case of a related Mortgaged Property
securing a Serviced Whole Loan, for the benefit of the Certificateholders and
the holders of any related Serviced Companion Loan, as their interests may
appear) 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 Mortgage Loan, Serviced Pari Passu Loan or Serviced
Companion Loan.
"REO Revenues": All income, rents and profits derived from the
ownership, operation or leasing of any REO Property.
"Reportable Event": As defined in Section 11.09.
"Reporting Servicer": The Servicer, the Special Servicer, Trustee or
a Servicing Function Participant, as the case may be.
"Request for Release": A release signed by a Servicing Officer of
the Servicer or the Special Servicer, as applicable, in the form of Exhibit E
attached hereto.
"Residual Certificate": Any Class R Certificate or Class LR
Certificate issued, authenticated and delivered hereunder.
"Responsible Officer": When used with respect to the initial
Trustee, any Vice President, Assistant Vice President, Assistant Secretary, or
trust officer in the corporate trust department of the Trustee, and with respect
to any successor Trustee, any officer or assistant officer in the corporate
trust department of the successor Trustee, or any other officer of the successor
Trustee, customarily performing functions similar to those performed by any of
the above designated officers to whom a particular matter is referred by the
successor Trustee, because of such officer's knowledge of and familiarity with
the particular subject.
"Rule 144A Book-Entry Certificate": With respect to any Class of
Certificates offered and sold in reliance on Rule 144A under the Securities Act,
a single Book-Entry Certificate, in definitive, fully registered form without
interest coupons.
"S&P": Standard & Poor's Ratings Services, a division of The McGraw
Hill Companies, Inc. and its successors in interest.
"▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act" means the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the
rules and regulations of the Commission promulgated thereunder (including any
interpretations thereof by the Commission's staff).
"▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification": As defined in Section 11.08.
"Scheduled Principal Distribution Amount": With respect to any
Distribution Date and in respect of any Mortgage Loan, the aggregate of the
principal portions of (a) all Monthly Payments (excluding Balloon Payments) due
on a Due Date in respect of such Mortgage Loan during or, if and to the extent
not previously received or advanced pursuant to Section 4.03 in respect of a
preceding Distribution Date, prior to, the related Due Period, and all Assumed
Scheduled Payments for the related Due Period, in each case to the extent either
(i) paid by the Mortgagor as of the Business Day preceding the related P&I
Advance Date (or, with respect to a Non-Serviced Mortgage Loan, to the extent
remitted by the related Non-Serviced Mortgage Loan Servicer to the Servicer on
or prior to the Business Day preceding the P&I Advance Date) (and not previously
distributed to Certificateholders) or (ii) advanced by the Servicer or the
Trustee, as applicable, pursuant to Section 4.03 in respect of such Distribution
Date, and (b) all Balloon Payments in respect of such Mortgage Loan to the
extent received by the Servicer on or prior to the Business Day preceding the
related P&I Advance Date (or, with respect to a Non-Serviced Mortgage Loan, to
the extent remitted by the related Non-Serviced Mortgage Loan Servicer to the
Servicer on or prior to the Business Day preceding the P&I Advance Date) and to
the extent not included in clause (a) above.
"Securities Act": The Securities Act of 1933, as amended.
"Security Agreement": With respect to any Mortgage Loan or Serviced
Whole Loan, any security agreement or equivalent 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 Mortgage Loan or Serviced Whole Loan.
"Sequential Pay Certificate": Any Class A, Class A-M, Class A-MFL,
Class A-J, Class A-JFL, Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class P, Class Q
or Class T Certificate.
"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 subject to the disclosure requirements set forth in Item
1108 of Regulation AB. For clarification purposes, any uncapitalized occurrence
of this term shall have the meaning commonly understood by participants in the
commercial mortgage-backed securities market.
"Serviced B Note": The ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇ Note,
the Clarion LaGuardia Airport Hotel B Note and/or the Prospect Plaza B Note, as
the context may require.
"Serviced Companion Loan Securities": For so long as the Mortgage
Loan related thereto or any successor Serviced REO Loan thereof is part of the
Mortgage Pool, any class of securities backed by a Serviced Companion Loan. Any
reference herein to a "series" of Serviced Companion Loan Securities shall refer
to separate securitizations of one or more of the Serviced Companion Loans.
"Serviced Companion Loan Securitization Agreement": With respect to
any Serviced Companion Loan, any agreement under which any securities evidencing
interests in such Serviced Companion Loan are issued, as from time to time
amended, supplemented or modified.
"Serviced Companion Loans": With respect to any Mortgage Loan (other
than a Non-Serviced Mortgage Loan), any mortgage loan that is secured by the
related Mortgaged Property on a subordinate or pari passu basis with such
Mortgage Loan. For the avoidance of doubt, the ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Pari Passu
Loans, the ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇ Note, the Clarion LaGuardia
Airport Hotel B Note and the Prospect Plaza B Note are the only Serviced
Companion Loans. Upon their respective inclusion in a securitization
transaction, the Downtown Plaza B Note and the Prospect Plaza B Note payments
will be collected by the servicer of such securitization until the occurrence of
a Material Default, as defined in the related Co-Lender Agreement, at which time
Servicer No. 1 shall be responsible for collecting such payments under this
Agreement.
"Serviced Pari Passu Loan": With respect to any Mortgage Loan (other
than a Non-Serviced Mortgage Loan), any mortgage loan that is secured by the
related Mortgaged Property on a pari passu basis with such Mortgage Loan. For
the avoidance of doubt, the ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Pari Passu Loan is a Serviced Pari
Passu Loan.
"Serviced Whole Loan": The ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Whole Loan, the Downtown
Plaza Whole Loan, The Enclave Whole Loan, the Clarion LaGuardia Airport Hotel
Whole Loan and/or the Prospect Plaza Whole Loan, as the context may require.
Upon their respective inclusion in a securitization transaction, the Downtown
Plaza B Note and the Prospect Plaza B Note payments will be collected by the
servicer of such securitization until the occurrence of a Material Default, as
defined in the related Co-Lender Agreement, at which time Servicer No. 1 shall
be responsible for collecting such payments under this Agreement.
"Serviced Whole Loan Custodial Account": With respect to each
Serviced Whole Loan, the segregated account, accounts or sub-account, which may
be a sub-account of the Certificate Account, created and maintained by the
Servicer pursuant to Section 3.04(e) on behalf of the holders of any related
Mortgage Loan or Serviced Companion Loan, which shall be entitled substantially
as "[NAME OF SERVICER], as Servicer, in trust for the Certificateholders and the
holders of any related Serviced Companion Loan, as their interests may appear."
Any such account(s) shall at all times be an Eligible Account(s) or
sub-account(s) of Eligible Account(s).
"Servicer": Shall mean Servicer No. 1 or Servicer No. 2, as
applicable.
"Servicer No. 1": KeyCorp Real Estate Capital Markets Inc., its
successors in interest and assigns, or any successor Servicer No. 1 appointed as
herein provided.
"Servicer No. 1 Cure Period": The period commencing on the date when
the Servicer No. 1 10-K Notice is delivered to Servicer No. 1 and ending at 5:00
p.m. (New York time) on March 15th.
"Servicer No. 1 10-K Notice": The notice to be delivered to Servicer
No. 1 by the Trustee pursuant to Section 11.16(f) hereof.
"Servicer No. 2": Bank of America, National Association, its
successors in interest and assigns, or any successor Servicer No. 2 appointed as
herein provided.
"Servicer No. 2 Cure Period": The period commencing on the date when
the Servicer No. 2 10-K Notice is delivered to Servicer No. 2 and ending at 5:00
p.m. (New York time) on March 15th.
"Servicer No. 2 10-K Notice": The notice to be delivered to Servicer
No. 2 by the Trustee pursuant to Section 11.16(g) hereof.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03.
"Servicing Advances": With respect to any Mortgage Loan (other than
a Non-Serviced Mortgage Loan) or Serviced Whole Loan, all customary, reasonable
and necessary "out of pocket" costs and expenses (including attorneys' fees and
expenses and fees of real estate brokers) incurred by the Servicer, the Trustee
or the Special Servicer, as applicable, in connection with the servicing and
administering of (a) such Mortgage Loan or Serviced Whole Loan in respect of
which a default, delinquency or other unanticipated event has occurred or as to
which a default is reasonably foreseeable or (b) the related REO Property, if
any, including, but not limited to, the cost of (i) compliance with the
Servicer's obligations set forth in Section 3.03(c), (ii) the preservation,
restoration and protection of a Mortgaged Property, (iii) obtaining any
Insurance Proceeds and Condemnation Proceeds or any Liquidation Proceeds of the
nature described in clauses (i)-(viii) of the definition of "Liquidation
Proceeds," (iv) any enforcement or judicial proceedings with respect to the
related Mortgaged Property, including foreclosures, (v) the operation, leasing,
management, maintenance and liquidation of any related REO Property and (vi) the
maintenance of insurance (including under the Servicer's force-placed insurance
policy) with respect to a Mortgaged Property (to the extent set forth in Section
3.07). Notwithstanding anything to the contrary, "Servicing Advances" shall not
include allocable overhead of the Servicer or the Special Servicer, 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 and expenses incurred by any such party in connection with its purchase
of a Mortgage Loan, Serviced Whole Loan or REO Property.
"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 Fee": With respect to each Mortgage Loan, Serviced
Companion Loan and any successor REO Loan, the fee payable to the Servicer
pursuant to the first paragraph of Section 3.11(a).
"Servicing Fee Rate": With respect to each Mortgage Loan and
Serviced Pari Passu Loan and the Downtown Plaza B Note, a rate equal to the per
annum rate set forth on the Mortgage Loan Schedule under the heading "Servicing
Fee Rate," in each case computed on the basis of the Stated Principal Balance of
the related Mortgage Loan and on the basis of a 360-day year with twelve 30-day
months.
"Servicing Function Participant": Any Person, other than the
Servicer, the Special Servicer and the Trustee, that is performing activities
that address the Servicing Criteria, unless such Person's activities relate only
to 5% or less of the Mortgage Loans (based on their Stated Principal Balance).
"Servicing Officer": Any officer or employee of the Servicer or the
Special Servicer, as applicable, involved in, or responsible for, the
administration and servicing of the Mortgage Loans or Serviced Companion Loans,
or this Agreement and also, with respect to a particular matter, any other
officer to whom such matter is referred because of such officer's or employee's
knowledge of and familiarity with the particular subject, and, in the case of
any certification required to be signed by a Servicing Officer, such an officer
or employee whose name and specimen signature appears on a list of servicing
officers furnished to the Trustee by the Servicer or the Special Servicer, as
applicable, as such list may from time to time be amended.
"Servicing-Released Bid": As defined in Section 7.01(d).
"Servicing-Retained Bid": As defined in Section 7.01(d).
"Servicing Standard": As defined in Section 3.01(a).
"Servicing Transfer Event": With respect to any Mortgage Loan (other
than a Non-Serviced Mortgage Loan) or Serviced Whole Loan, the occurrence of any
of the following events:
(i) a payment default shall have occurred on such Mortgage
Loan or Serviced Whole Loan at its original maturity date or, if the
original maturity date of such Mortgage Loan or Serviced Whole Loan
has been extended in accordance herewith, a payment default occurs
on such Mortgage Loan or Serviced Whole Loan at its extended
maturity date or, in the case of Balloon Loans, the date the related
Balloon payment is due; or
(ii) any Monthly Payment (other than a Balloon Payment) is 60
days or more delinquent; or
(iii) the date upon which the Servicer or Special Servicer
(with the consent of the Directing Certificateholder in the case of
a determination by the Special Servicer) determines that a payment
default or any other default under the applicable loan documents
that (with respect to such other default) would impair the value of
the related Mortgaged Property as security for such Mortgage Loan or
Serviced Whole Loan or otherwise would materially adversely affect
the interests of Certificateholders and, if applicable, the holders
of any Serviced Companion Loan and would continue unremedied beyond
the applicable grace period under the terms of the related loan
documents (or, if no grace period is specified, for 60 days, and
provided that a default that would give rise to an acceleration
right without any grace period shall be deemed to have a grace
period equal to zero) is imminent; or
(iv) the date upon which 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 (including any similar law of
the Commonwealth of Puerto Rico), or the appointment of a
conservator, receiver or liquidator in any insolvency, readjustment
of debt, marshaling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs,
and being entered against the related Mortgagor; and such decree or
order shall have remained in force undischarged or unstayed for a
period of 60 days; or
(v) the related Mortgagor shall consent to the appointment of
a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or
similar proceedings of or relating to such Mortgagor or of or
relating to all or substantially all of its property; or
(vi) the related Mortgagor shall admit in writing its
inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, or voluntarily suspend payment of its obligations; or
(vii) as to which a default of which the Servicer or Special
Servicer has notice (other than (A) a failure by the related
borrower to pay principal or interest and (B) a failure by the
borrower to maintain all-risk casualty insurance or other insurance
with respect to a Mortgaged Property that covers acts of terrorism
in the event that the Special Servicer determines, in accordance
with the Servicing Standard, that either (i) such insurance is not
available at any rate or (ii) such insurance is not available at
commercially reasonable rates and that such hazards are not at the
time commonly insured against for properties similar to the
Mortgaged Property and located in or around the geographic region in
which such Mortgaged Property is located) and which, in the opinion
of the Servicer or the Special Servicer, as applicable, materially
and adversely affects the interests of the Certificateholders (or,
with respect to the Serviced Whole Loans, the holders of the related
Serviced Companion Loans (as a collective whole)) has occurred and
remains unremediated for the applicable grace period specified in
such mortgage loan or Serviced Whole Loan (or if no grace period is
specified, 60 days); or
(viii) the Servicer or Special Servicer (who shall forward
such notice to the Servicer) has received notice of the foreclosure
or proposed foreclosure of any lien on the related Mortgaged
Property.
A Servicing Transfer Event for a Mortgage Loan included in a
Serviced Whole Loan will trigger a Servicing Transfer Event for any related
Serviced Companion Loan, and a Servicing Transfer Event for any Serviced Pari
Passu Loan or Serviced Companion Loan included in a Serviced Whole Loan will
trigger a Servicing Transfer Event for the related Mortgage Loan.
With respect to a Non-Serviced Mortgage Loan, the occurrence of a
"Servicing Transfer Event" (as such term is defined in the related Non-Serviced
Mortgage Loan Pooling Agreement) shall constitute a Servicing Transfer Event.
"Similar Law": As defined in Section 5.02(c).
"Skyline Portfolio A Notes": Collectively, the three pari passu
notes that make up the Skyline Portfolio Whole Loan.
"Skyline Portfolio Co-Lender Agreement": That certain amended and
restated intercreditor and servicing agreement, dated as of April 1, 2007, by
and among the holders of the Skyline Portfolio Mortgage Loan and the Skyline
Portfolio Pari Passu Loans, in each case, relating to the relative rights of
such holders, as the same may be further amended, modified or supplemented from
time to time.
"Skyline Portfolio Mortgage Loan": With respect to the Skyline
Portfolio Whole Loan, the promissory note made by the related Mortgagor and
secured by the Mortgage on the Skyline Portfolio Mortgaged Property in the
original principal amount of $203,400,000, which is included in the Trust and
which is pari passu in right of payment to the Skyline Portfolio A Notes, as
provided in the Skyline Portfolio Co-Lender Agreement, as from time to time
amended, supplemented, modified or replaced.
"Skyline Portfolio Mortgaged Property": The property or properties
which secure the Skyline Portfolio Whole Loan.
"Skyline Portfolio Pari Passu Loans": For so long as the Skyline
Portfolio Mortgage Loan or a successor REO Loan with respect to the Skyline
Portfolio Mortgage Loan is part of the Mortgage Pool, the Skyline Portfolio A
Notes. The Skyline Portfolio Pari Passu Loans are not included in the Trust.
"Skyline Portfolio Whole Loan": The Skyline Portfolio Mortgage Loan,
together with the Skyline Portfolio Pari Passu Loans. References herein to the
Skyline Portfolio Whole Loan shall be construed to refer to the aggregate
indebtedness under the Skyline Portfolio Mortgage Loan and the Skyline Portfolio
Pari Passu Loans.
"Sole Certificateholder": Any Holder (or Holders provided they act
in unanimity) holding 100% of the Class X-C, Class L, Class M, Class N, Class O,
Class P, Class Q and Class T Certificates or an assignment of the voting rights
thereof; provided, however, that the Certificate Balances of the Class A-1,
Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class A-AB, Class A-4, Class A-1A, Class X-P, Class A-M,
Class A-MFL, Class A-J, Class A-JFL, 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.
"Special Servicer": LNR or any successor Special Servicer appointed
as herein provided.
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage Loan and REO Loan, the fee payable to the Special Servicer pursuant to
the first paragraph of Section 3.11(b), which in each case shall be a minimum of
$4,000 per month for each Specially Serviced Mortgage Loan and REO Loan.
"Special Servicing Fee Rate": With respect to each Specially
Serviced Mortgage Loan and each REO Loan, 0.35% per annum computed on the basis
of the Stated Principal Balance of the related Mortgage Loan or Serviced Whole
Loan and on the basis of a 360-day year with twelve 30-day months.
"Specially Serviced Mortgage Loan": As defined in Section 3.01(a).
"Startup Day": The day designated as such in Section 10.01(b).
"Stated Principal Balance": With respect to any Mortgage Loan, as of
any date of determination, an amount equal to (x) the Cut-off Date Principal
Balance of such Mortgage Loan, plus (y) any Mortgage Deferred Interest added to
the principal balance of such Mortgage Loan on or prior to the immediately
preceding Determination Date minus (z) the sum of:
(i) the principal portion of each Monthly Payment due on and
attributable to such Mortgage Loan after the Cut-off Date, to the
extent received from the Mortgagor or advanced by the Servicer;
(ii) all Principal Prepayments received with respect to such
Mortgage Loan after the Cut-off Date;
(iii) the principal portion of all Insurance Proceeds,
Condemnation Proceeds and Liquidation Proceeds received with respect
to and attributable to such Mortgage Loan after the Cut-off Date;
and
(iv) any reduction in the outstanding principal balance of
such Mortgage Loan resulting from a Deficient Valuation or other
modification of the Mortgage Loan that occurred prior to the
Determination Date for the most recent Distribution Date.
With respect to any REO Loan, as of any date of determination, an
amount equal to (x) the Stated Principal Balance of the predecessor Mortgage
Loan or Serviced Companion Loan as of the date of the related REO Acquisition,
minus (y) the sum of:
(i) the principal portion of any P&I Advance made with respect
to the predecessor Mortgage Loan or Serviced Pari Passu Loan on or
after the date of the related REO Acquisition; and
(ii) the principal portion of all Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds and REO Revenues
received with respect to such REO Loan.
With respect to any Serviced Companion Loan, as of any date of
determination, an amount equal to (x) the Cut-off Date Principal Balance of such
Serviced Companion Loan, plus (y) any Mortgage Deferred Interest added to the
principal balance of such Serviced Companion Loan on or before the end of the
immediately preceding Determination Date minus (z) the sum of:
(i) the principal portion of each Monthly Payment due on and
attributable to such Serviced Companion Loan after the Cut-off Date,
to the extent received from the Mortgagor;
(ii) all Principal Prepayments received with respect to such
Serviced Companion Loan after the Cut-off Date;
(iii) the principal portion of all Insurance Proceeds,
Condemnation Proceeds and Liquidation Proceeds received with respect
to and attributable to such Serviced Companion Loan after the
Cut-off Date; and
(iv) any reduction in the outstanding principal balance of
such Serviced Companion Loan resulting from a Deficient Valuation or
other modification of such Serviced Companion Loan that occurred
prior to the Determination Date for the most recent Distribution
Date and in accordance with the terms of the related Co-Lender
Agreement.
With respect to any Serviced Whole Loan, as of any date of
determination, the sum of (a) the amount calculated with respect to the Mortgage
Loan related to such Serviced Whole Loan in accordance with the first paragraph
of this definition and (b) the amount calculated with respect to any related
Serviced Companion Loan included in such Serviced Whole Loan in accordance with
the third paragraph of this definition.
A Mortgage Loan or an REO Loan shall be deemed to be part of the
Trust Fund and to have an outstanding Stated Principal Balance until the
Distribution Date on which the payments or other proceeds, if any, received in
connection with a Liquidation Event in respect thereof are to be (or, if no such
payments or other proceeds are received in connection with such Liquidation
Event, would have been) distributed to Certificateholders.
"Statement to Certificateholders": As defined in Section 4.02(a).
"Sub-Servicer": Any Person engaged by either Servicer or the Special
Servicer to perform Servicing with respect to one or more Mortgage Loans or REO
Loans.
"Sub-Servicing Agreement": The written contract between the Servicer
or the Special Servicer, as the case may be, and any Sub-Servicer relating to
servicing and administration of Mortgage Loans or Serviced Whole Loans as
provided in Section 3.22.
"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
Servicer, the Special Servicer, any Additional Servicer or any Servicing
Function Participant appointed by any of them.
"Subject Securitization Transaction" shall mean the commercial
mortgage securitization transaction contemplated by this Agreement.
"Subordinate Certificate": Any Class A-M, Class A-MFL, Class A-J,
Class A-JFL, Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class N, Class O, Class P, Class Q or Class
T Certificate.
"Substitution Shortfall Amount": With respect to a substitution
pursuant to Section 2.03(b) hereof, an amount equal to the excess, if any, of
the Purchase Price of the Mortgage Loan being replaced calculated as of the date
of substitution over the Stated Principal Balance of the related Qualified
Substitute Mortgage Loans as of the date of substitution. In the event that one
or more Qualified Substitute Mortgage Loans are substituted (at the same time)
for one or more deleted Mortgage Loans, the Substitution Shortfall Amount shall
be determined as provided in the preceding sentence on the basis of the
aggregate Purchase Prices of the Mortgage Loan or Mortgage Loans being replaced
and the aggregate Stated Principal Balances of the related Qualified Substitute
Mortgage Loan or Mortgage Loans.
"Successful Bidder": As defined in Section 7.01(e).
"Successful Sub-Servicing Bidder": As defined in Section 3.22(h).
"Swap Contract": The Class A-MFL Swap Contract or the Class A-JFL
Swap Contract, as applicable, or any replacement interest rate swap agreement
entered into by the Trustee in accordance with this Agreement.
"Swap Counterparty": The Class A-MFL Swap Counterparty or the Class
A-JFL Swap Counterparty, as applicable.
"Swap Default": A Class A-MFL Swap Default or the Class A-JFL Swap
Default, as applicable.
"Tax Returns": The federal income tax returns on Internal Revenue
Service 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 the Upper-Tier REMIC and the Lower-Tier REMIC
due to its classification as a REMIC under the REMIC Provisions and the federal
income tax returns to be filed on behalf of each Grantor Trust due to its
classification as a grantor trust under subpart E, Part I of subchapter J of the
Code, together with any and all other information, reports or returns that may
be required to be furnished to the Certificateholders or filed with the Internal
Revenue Service or any other governmental taxing authority under any applicable
provisions of federal tax law or Applicable State and Local Tax Law.
"The Enclave B Note": With respect to The Enclave Whole Loan, the
related promissory note made by the related Mortgagor and secured by the
Mortgage on the Mortgaged Property identified as "The Enclave" and designated as
Promissory Note B, which is not included in the Trust, which is subordinated in
right of payment to The Enclave Mortgage Loan as provided in The Enclave
Co-Lender Agreement.
"The Enclave Co-Lender Agreement": With respect to The Enclave Whole
Loan, the related intercreditor agreement by and between the holders of The
Enclave Mortgage Loan and The Enclave B Note, relating to the relative rights of
such holders of the respective The Enclave Mortgage Loan and The Enclave B Note,
as the same may be amended from time to time in accordance with the terms
thereof.
"The Enclave Directing Holder" means, subject to certain conditions
specified in The Enclave Co-Lender Agreement, (i) prior to the occurrence of a
Noteholder Control Appraisal Event (as defined in The Enclave Co-Lender
Agreement) with respect to the holder of The Enclave B Note, the holder of The
Enclave B Note; and (ii) following the occurrence of a Noteholder Control
Appraisal Event, the Directing Certificateholder.
"The Enclave Mortgage Loan": With respect to The Enclave Whole Loan,
the related promissory note made by the related Mortgagor and secured by the
Mortgage on the Mortgaged Property identified as "The Enclave" and designated as
Promissory Note A, which is included in the Trust and which is senior in right
of payment to The Enclave B Note as provided in The Enclave Co-Lender Agreement.
"The Enclave Whole Loan": Collectively, The Enclave Mortgage Loan
and The Enclave B Note. References herein to The Enclave Whole Loan shall be
construed to refer to the aggregate indebtedness under The Enclave Mortgage Loan
and The Enclave B Note.
"Third Party Appraiser": As defined in Section 3.18(e).
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit": As defined in Section 5.02(d).
"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.
"Transferor Letter": As defined in Section 5.02(d).
"Trust": GE Commercial Mortgage Corporation, Series 2007-C1 Trust,
the trust created hereby and to be administered hereunder.
"Trust Fund": The segregated pool of assets subject hereto,
constituting the Trust, consisting of: (i) the Mortgage Loans as from time to
time are subject to this Agreement and all payments under and proceeds of such
Mortgage Loans received after the Cut-off Date (other than payments of principal
and interest due and payable on such Mortgage Loans on or before the Cut-off
Date), together with all documents included in the related Mortgage Files; (ii)
such funds or assets as from time to time are deposited in the Certificate
Account, any Serviced Whole Loan Custodial Account (to the extent such amounts
are allocable to the related Mortgage Loan, pursuant to the related Co-Lender
Agreement), the Distribution Account, any Servicing Accounts, the Interest
Reserve Account and the REO Accounts (to the extent of the Trust Fund's interest
therein); (iii) any REO Property (to the extent of the Trust Fund's interest
therein) or beneficial interest in a Mortgaged Property acquired pursuant to a
Non-Serviced Mortgage Loan Pooling Agreement; (iv) the rights of the mortgagee
under all Insurance Policies with respect to the Mortgage Loans; (v) the Excess
Liquidation Proceeds Reserve Account (to the extent of the Trust Fund's interest
therein); (vi) the Uncertificated Lower-Tier Interests; (vii) the Class A-MFL
Regular Interest, the Class A-MFL Swap Contract and the Class A-MFL Floating
Rate Account, (vii) the Class A-JFL Regular Interest, the Class A-JFL Swap
Contract and the Class A-JFL Floating Rate Account and (ix) the rights of the
Depositor under Sections 2, 3, 4, 6, 9, 11, 12, 13, 16 and 17 of each Mortgage
Loan Purchase Agreement.
"Trustee": ▇▇▇▇▇ Fargo Bank, N.A., a national banking association,
in its capacity as trustee and its successors in interest, or any successor
Trustee appointed as herein provided.
"Trustee Exception Report": As defined in Section 2.02(e).
"Trustee Fee": The fee to be paid monthly on the Distribution Date
to the Trustee as compensation for the Trustee's activities under this Agreement
equal to the product of the Trustee Fee Rate and the Stated Principal Balance of
the Mortgage Loans as of the preceding Distribution Date.
"Trustee Fee Rate": A rate equal to 0.00053% per annum.
"UCC": The Uniform Commercial Code, as enacted in each applicable
state.
"UCC Financing Statement": A financing statement executed and filed
pursuant to the UCC, as in effect in the relevant jurisdiction.
"Uncertificated Lower-Tier Interests": Any of the Class LA-1-1,
Class LA-1-2, Class LA-1-3, Class LA-1-4, Class LA-2-1, Class LA-2-2, Class
LA-2-3, Class LA-2-4, Class LA-2-5, Class A-2-6, Class LA-1A-1, Class LA-1A-2,
Class LA-1A-3, Class LA-1A-4, Class LA-1A-5, Class LA-1A-6, Class LA-1A-7, Class
LA-1A-8, Class LA-1A-9, Class LA-1A-10, Class LA-1A-11, Class LA-1A-12, Class
LA-1A-13, Class LA-1A-14, Class LA-1A-15, Class LA-3-1, Class LA-3-2, Class
LA-4-1, Class LA-4-2, Class LA-4-3, Class LA-4-4, Class LA-4-5, Class A-4-6,
Class LA-M, Class LA-J, Class LB, Class LC, Class LD-1, Class LD-2, Class LE-1,
Class LE-2, Class LE-3, Class LF-1, Class LF-2, Class LG-1, Class LG-2, Class
LG-3, Class LH-1, Class LH-2, Class LJ-1, Class LJ-2, Class LK-1, Class LK-2,
Class LL-1, Class LL-2, Class LM, Class LN, Class LO, Class LP, Class LQ and
Class LT Uncertificated Lower-Tier Interests.
"Uncovered Prepayment Interest Shortfall": Any Prepayment Interest
Shortfall in excess of the Compensating Interest Payment.
"Underwriters": Banc of America Securities LLC, Deutsche Bank
Securities Inc., Barclays Capital Inc., Citigroup Global Markets Inc. and Bear,
▇▇▇▇▇▇▇ & Co. Inc.
"Underwritten Debt Service Coverage Ratio": With respect to any
Mortgage Loan (other than any Non-Serviced Mortgage Loan), the ratio of (i)
Underwritten Net Cash Flow produced by the related Mortgaged Property or
Mortgaged Properties to (ii) the aggregate amount of the Monthly Payments due
for the 12-month period immediately following the Cut-off Date, except with
respect to those Mortgage Loans identified on Schedule 3 where Monthly Payments
pay interest only for a specified period of time set forth in the related
Mortgage Loan documents and then pay principal and interest, but for purposes of
this definition only, shall be assumed to include interest and principal (based
upon the amortization schedule length indicated on Schedule 3).
"Underwritten Net Cash Flow": With respect to any Mortgaged
Property, the estimated stabilized annual revenue derived from the use and
operation of such Mortgaged Property, less estimated stabilized annual expenses,
including operating expenses (such as utilities, administrative expenses,
repairs and maintenance, tenant improvement costs, leasing commissions,
management fees and advertising), fixed expenses (such as insurance, real estate
taxes and, if applicable, ground lease payments) and replacement reserves and an
allowance for vacancies and credit losses. In calculating Underwritten Net Cash
Flow, certain non-operating items such as depreciation, amortization,
partnership distributions, financing fees and capital expenditures other than
applicable reserves, are not included as expenses.
"Uninsured Cause": Any cause of damage to property subject to a
Mortgage such that the complete restoration of such property is not fully
reimbursable by the hazard insurance policies or flood insurance policies
required to be maintained pursuant to Section 3.07.
"Unscheduled Principal Distribution Amount": With respect to any
Distribution Date, the aggregate of:
(a) all Principal Prepayments received on the Mortgage Loans on or
prior to the related Determination Date occurring in the month in which
such Distribution Date occurs (or, in the case of a Non-Serviced Mortgage
Loan, the portion of such amounts attributable to such Non-Serviced
Mortgage Loan pursuant to the related Co-Lender Agreement); and
(b) the principal portions of all Liquidation Proceeds, Insurance
Proceeds and Condemnation Proceeds and, if applicable, REO Revenues
received with respect to the Mortgage Loans and any REO Loans on or prior
to the related Determination Date occurring in the month in which such
Distribution Date occurs (or, in the case of any Non-Serviced Mortgage
Loan, the portion of such amounts payable with respect to such
Non-Serviced Mortgage Loan pursuant to the related Co-Lender Agreement),
but in each case only to the extent that such principal portion represents
a recovery of principal for which no advance was previously made pursuant
to Section 4.03 in respect of a preceding Distribution Date.
"Upper-Tier Distribution Account": The segregated sub-account deemed
to be a part of the Distribution Account and maintained by the Trustee pursuant
to Section 3.04(b).
"Upper-Tier REMIC": One of the two separate REMICs comprising the
Trust Fund, the assets of which consist of the Uncertificated Lower-Tier
Interests and such amounts as shall from time to time be held in the Upper-Tier
Distribution Account.
"U.S. Dollars": Lawful money of the United States of America.
"U.S. Person": A citizen or resident of the United States, a
corporation or partnership (except to the extent provided in applicable Treasury
Regulations) or other entity 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 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 such trust, and one or more such
U.S. Persons 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. Persons).
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. At all times during the term
of this Agreement, the Voting Rights shall be allocated among the various
Classes of Certificateholders as follows: (i) 4% in the case of the Class X
Certificates (allocated to the Class X-C and Class X-P Certificates on a pro
rata basis based on their respective outstanding Notional Amounts at the time of
determination) and (ii) in the case of any other Class of Regular Certificates a
percentage equal to the product of 96% and a fraction, the numerator of which is
equal to the aggregate Certificate Balance of such Class, in each case,
determined as of the Distribution Date immediately preceding such time, and the
denominator of which is equal to the aggregate Certificate Balance of the
Regular Certificates, each determined as of the Distribution Date immediately
preceding such time. None of the Class R Certificates or the Class LR
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 Net Mortgage Rate": With respect to any
Distribution Date, the weighted average of the applicable Net Mortgage Rates of
the Mortgage Loans, weighted on the basis of their respective Stated Principal
Balances as of the preceding Distribution Date (after giving effect to the
distribution of principal on the related Distribution Date) or, in the case of
the first Distribution Date, the Cut-off Date.
"Whole Loan": Any Serviced Whole Loan and Non-Serviced Whole Loan,
as applicable.
"Whole Loan REO Account": As defined in Section 3.16(b).
"Withheld Amounts": As defined in Section 3.25(a).
"Workout-Delayed Reimbursement Amounts": With respect to any
Mortgage Loan, the amount of any Advance made with respect to such Mortgage Loan
on or before the date such Mortgage Loan becomes (or, but for the making of
three monthly payments under its modified terms, would then constitute) a
Corrected Mortgage Loan, together with (to the extent accrued and unpaid)
interest on such Advances, to the extent that (i) such Advance (and interest
thereon) is not reimbursed to the Person who made such Advance on or before the
date, if any, on which such Mortgage Loan becomes a Corrected Mortgage Loan and
(ii) the amount of such Advance (and interest thereon) becomes an obligation of
the Mortgagor to pay such amount under the terms of the modified Mortgage Loan
documents. The Special Servicer shall provide the Servicer with information
sufficient to enable the Servicer to calculate such amount. 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": The fee paid to the Special Servicer with respect to
each Corrected Mortgage Loan (other than a Non-Serviced Mortgage Loan), as set
forth in Section 3.11(b).
"Workout Fee Rate": A fee of 1.0% of each collection (other than
Default Interest) of interest and principal (other than any amount for which a
Liquidation Fee would be paid), including (i) Monthly Payments, (ii) Balloon
Payments, (iii) prepayments and (iv) payments (other than those included in
clause (i) or (ii) of this definition) at maturity, received on each Corrected
Mortgage Loan for so long as it remains a Corrected Mortgage Loan.
"Yield Maintenance Charge": With respect to any Mortgage Loan,
Serviced Whole Loan or REO Loan, the yield maintenance charge set forth in the
related Mortgage Loan documents; provided that no amounts shall be considered
Yield Maintenance Charges until there has been a full recovery of all principal,
interest and other amounts due under the related Mortgage Loan or Serviced Whole
Loan.
Section 1.02 Certain Calculations.
Unless otherwise specified herein, for purposes of determining
amounts with respect to the Certificates and the rights and obligations of the
parties hereto, the following provisions shall apply:
(i) All calculations of interest (other than as provided in
the Mortgage Loan documents) provided for herein shall be made on
the basis of a 360-day year consisting of twelve 30-day months.
(ii) Any Mortgage Loan or Serviced Whole Loan payment is
deemed to be received on the date such payment is actually received
by the Servicer or the Special Servicer; provided, however, that for
purposes of calculating distributions on the Certificates or the
Class A-MFL or Class A-JFL Regular Interest, Principal Prepayments
with respect to any Mortgage Loan or Serviced Whole Loan are deemed
to be received on the date they are applied in accordance with the
Servicing Standard consistent with the terms of the related Mortgage
Note and Mortgage to reduce the outstanding principal balance of
such Mortgage Loan or Serviced Whole Loan on which interest accrues.
(iii) Any reference to the Certificate Balance of any Class of
Regular Certificates (other than the Class X Certificates) or the
Class A-MFL or Class A-JFL Regular Interest on or as of a
Distribution Date shall refer to the Certificate Balance of such
Class of Certificates or regular interest on such Distribution Date
after giving effect to (a) any distributions made on such
Distribution Date pursuant to Section 4.01(a), (b) any Collateral
Support Deficit allocated to such Class on such Distribution Date
pursuant to Section 4.04, (c) the addition of any Certificate
Deferred Interest allocated to such Class and added to such
Certificate Balance pursuant to Section 4.06(b) and (d) any
recoveries on the related Mortgage Loan of Nonrecoverable Advances
(plus interest thereon) that were previously reimbursed from
principal collections on the Mortgage Loans that resulted in a
reduction of the Principal Distribution Amount, Loan Group 1
Principal Distribution Amount or Loan Group 2 Principal Distribution
Amount, which recoveries are allocated to such Class and added to
the Certificate Balance pursuant to Section 4.04(a). The calculation
of Voting Rights hereunder shall not be affected by an Appraisal
Reduction.
(iv) If an expense under this Agreement relates in the
reasonable judgment of the Servicer, the Special Servicer or the
Trustee, as applicable, primarily to the administration of the Trust
Fund, the Lower-Tier REMIC or the Upper-Tier REMIC formed hereunder
or to any determination respecting the amount, payment or contest of
any tax under the REMIC Provisions or the actual payment of any
REMIC tax or expense, then such expense shall not be allocated to,
deducted or reimbursed from, or otherwise charged against any holder
of a Serviced Companion Loan and such holder of a Serviced Companion
Loan shall not suffer any adverse consequences as a result of the
payment of such expense.
[End of Article I]
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.
(a) The Depositor hereby establishes the Trust as a common law trust
under the laws of the State of New York and designates the Trust as "GE
Commercial Mortgage Corporation, Series 2007-C1 Trust." Concurrently with the
execution and delivery hereof, the Depositor does hereby assign, sell, transfer
and convey to the Trustee, without recourse, for the benefit of the
Certificateholders and the Trustee (as holder of the Uncertificated Lower-Tier
Interests and the Class A-MFL Regular Interest and the Class A-JFL Regular
Interest), on behalf of the Trust, all the right, title and interest of the
Depositor, including any security interest therein for the benefit of the
Depositor, in, to and under (i) the Mortgage Loans (including, without
limitation, all related Mortgage Loan documents executed in connection
therewith) identified on the Mortgage Loan Schedule, (ii) Sections 2, 3, 4, 6,
9, 11, 12, 16 and 17 of each of the Mortgage Loan Purchase Agreements and (iii)
all other assets included or to be included in the Trust Fund. Such assignment
includes all interest and principal received or receivable on or with respect to
the Mortgage Loans (other than payments of principal and interest due and
payable on the Mortgage Loans on or before the Cut-off Date) and all escrow and
collateral accounts and, in the case of a Mortgage Loan included in a Whole
Loan, is subject to the related Co-Lender Agreement. Such assignment of any
Non-Serviced Mortgage Loan, and, the right to service such Mortgage Loan, are
further subject to the terms and conditions of the related Non-Serviced Mortgage
Loan Pooling Agreement and the related Co-Lender Agreement. The transfer of the
Mortgage Loans and the related rights and property accomplished hereby is
absolute and, notwithstanding Section 12.07, is intended by the parties to
constitute a sale. In connection with the assignment to the Trustee of Sections
2, 3, 4, 6, 9, 11, 12, 16 and 17 of each of the Mortgage Loan Purchase
Agreements, it is intended that the Trustee get the benefit of Sections 10 and
13 thereof in connection with any exercise of rights under such assigned
Sections, and the Depositor shall use its best efforts to make available to the
Trustee the benefits of Sections 10 and 13 in connection therewith.
(b) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall direct, and hereby represents and
warrants that it has directed, each of the Mortgage Loan Sellers pursuant to the
applicable Mortgage Loan Purchase 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 Note for each
Mortgage Loan so assigned, with copies to the applicable Servicer (or, in the
case of the Mortgage Loans sold to the Depositor by Bank of America, to Bank of
America) and, within 45 days following the Closing Date, the remaining documents
in the Mortgage File for each such Mortgage Loan. With respect to the Mortgage
Loans sold to the Depositor by GECC, the Depositor shall cause GECC to forward
to the applicable Servicer copies of the documents listed in clauses (i), (ii),
(vi), (viii), (xvi), (xviii) and (xix) of the definition of Mortgage File. If
the applicable Mortgage Loan Seller cannot deliver, or cause to be delivered, as
to any Mortgage Loan, the original Mortgage Note, such Mortgage Loan Seller
shall deliver a copy or duplicate original of such Mortgage Note, together with
an affidavit certifying that the original thereof has been lost or destroyed and
indemnifying the Trustee. The Trustee shall provide a certification in the form
attached hereto as Exhibit V-1 on the Closing Date that all Mortgage Notes have
been received or an appropriate affidavit has been delivered. If the applicable
Mortgage Loan Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, any of the documents and/or instruments referred to in clauses
(ii), (iv), (vi), (viii), (xi) and (xiii) of the definition of "Mortgage File,"
with evidence of recording thereon, solely because of a delay caused by the
public recording office where such document or instrument has been delivered for
recordation, the delivery requirements of the applicable Mortgage Loan Purchase
Agreement and this Section 2.01(b) shall be deemed to have been satisfied on a
provisional basis as to such non-delivered document or instrument, and such
non-delivered document or instrument shall be deemed to have been included in
the Mortgage File, provided that a photocopy of such non-delivered document or
instrument (certified by the applicable Mortgage Loan Seller to be a true and
complete copy of the original thereof submitted for recording) is delivered to
the Trustee or a Custodian appointed thereby within 45 days following the
Closing Date, and either the original of such non-delivered document or
instrument, or a photocopy thereof, with evidence of recording thereon, is
delivered to the Trustee or such Custodian within 180 days of the Closing Date
(or within such longer period after the Closing Date as the Trustee may consent
to, which consent shall not be unreasonably withheld so long as the applicable
Mortgage Loan Seller is, as certified in writing to the Trustee no less often
than every 90 days, in good faith attempting to obtain from the appropriate
county recorder's office such original or photocopy). If the applicable Mortgage
Loan Seller cannot deliver, or cause to be delivered, as to any Mortgage Loan,
any of the documents and/or instruments referred to in clauses (ii), (iv), (vi),
(viii), (xi) and (xiii) of the definition of "Mortgage File," with evidence of
recording thereon, for any other reason, including, without limitation, that
such non-delivered document or instrument has been lost, the delivery
requirements of the applicable Mortgage Loan Purchase Agreement and this Section
2.01(b) shall be deemed to have been satisfied as to such non-delivered document
or instrument, and such non-delivered document or instrument shall be deemed to
have been included in the Mortgage File; provided, that a photocopy of such
non-delivered document or instrument (with evidence of recording thereon and
certified in the case of the documents and/or instruments referred to in clause
(ii) of the definition of "Mortgage File" by the appropriate county recorder's
office to be a true and complete copy of the original thereof submitted for
recording) is delivered to the Trustee or a Custodian appointed thereby within
45 days following the Closing Date. Neither the Trustee nor any Custodian shall
in any way be liable for any failure by such Mortgage Loan Seller or the
Depositor to comply with the delivery requirements of the related Mortgage Loan
Purchase Agreement and this Section 2.01(b). If, within 45 days following the
Closing Date as to any Mortgage Loan, the applicable Mortgage Loan Seller cannot
deliver in complete and recordable form any one of the assignments in favor of
the Trustee referred to in clauses (iii), (v), (vii) or (xii) of the definition
of "Mortgage File" solely because of the unavailability of recording information
as to any existing document or instrument, such Mortgage Loan Seller may
provisionally satisfy the delivery requirements of the related Mortgage Loan
Purchase Agreement and this Section 2.01(b) by delivering with respect to such
Mortgage Loan within 45 days following the Closing Date an omnibus assignment of
such Mortgage Loan substantially in the form of Exhibit H; provided, that all
required original assignments with respect to such Mortgage Loan (except for any
Mortgage which has been recorded in the name of MERS or its designee), in fully
complete and recordable form, are delivered to the Trustee or its Custodian
within 180 days of the Closing Date (or within such longer period as the Trustee
in its discretion may permit). Notwithstanding anything herein to the contrary,
with respect to the documents referred to in clause (xix) of the definition of
Mortgage File, the applicable Servicer shall hold the original of such document
in trust on behalf of the Trustee in order to draw on such letter of credit and
the applicable Mortgage Loan Seller shall be deemed to have satisfied the
delivery requirements of the related Mortgage Loan Purchase Agreement and this
Section 2.01(b) by delivering the original of such document to the applicable
Servicer, who will certify receipt of such document, and forward a copy of the
applicable document to the Trustee (and, with respect to the Mortgage Loans sold
to the Depositor by GECC, the Servicer), and the Trustee shall appoint such
Servicer as custodian and such Servicer shall accept such appointment with
respect to such letters of credit. The applicable Mortgage Loan Seller shall pay
any costs of assignment of such letter of credit required in order for the
applicable Servicer to draw on such letter of credit.
(c) Except under the circumstances provided for in the last sentence
of this subsection (c), the Trustee, at the related Mortgage Loan Seller's
expense, shall as to each Mortgage Loan, promptly (and in any event within 75
days of the later of the Closing Date, the Trustee's actual receipt of the
related documents and the date on which the Trustee receives with respect to the
original recorded or filed documents relating to such assignments and UCC
Financing Statements, all necessary recording or filing information required for
the filing of such assignments and UCC Financing Statements) cause to be
submitted for recording or filing, as the case may be, in the appropriate public
office for real property records or UCC Financing Statements, as appropriate
(except for any Mortgage Loan that has been recorded in the name of MERS or its
designee), each assignment to the Trustee referred to in clauses (iii) and
clause (v) of the definition of "Mortgage File" and each financing statement in
lieu of a continuation statement and UCC-3 to the Trustee referred to in clause
(xii) of the definition of "Mortgage File." Each such assignment shall reflect
that it should be returned by the public recording office to the Trustee or its
designee following recording, and each such financing statement in lieu of a
continuation statement and UCC-3 shall reflect that the file copy thereof should
be returned to the Trustee or its designee following filing. If any such
document or instrument is determined to be incomplete or not to meet the filing
requirements of the jurisdiction in which it is recorded or filed, or is lost or
returned unrecorded or unfiled, as the case may be, because of a defect therein
on or about 180 days after the Closing Date, the Trustee shall prepare or cause
to be prepared at the expense of the related Mortgage Loan Seller 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. Notwithstanding the foregoing, there shall be no requirement to
record any assignment to the Trustee referred to in clause (v) of the definition
of "Mortgage File," or to file any financing statement in lieu of a continuation
statement and UCC-3 to the Trustee referred to in clause (xii) of the definition
of "Mortgage File," in those jurisdictions where, in the written opinion of
local counsel (such opinion to be provided by the applicable Mortgage Loan
Seller and which opinion shall not be an expense of the Trustee, the Trust Fund
or the holder of any Serviced Companion Loan) acceptable to the Depositor and
the Trustee, such recordation and/or filing is not required to protect the
Trustee's interest in the related Mortgage Loans against sale, further
assignment, satisfaction or discharge by the related Mortgage Loan Seller, the
Servicers, the Special Servicer, any Sub-Servicer or the Depositor.
(d) All documents and records in the Depositor's or the applicable
Mortgage Loan Seller's possession relating to the Mortgage Loans and originals
or copies of all financial statements, operating statements, appraisals,
environmental/engineering reports, environmental insurance policies, the
Mortgage Loan Seller's asset summary and original underwriting, closing
documents, leases, management agreements, rent rolls and legal opinions and any
other documents in the possession of the Mortgage Loan Seller, and any other
information provided by the respective Mortgagor from time to time, that are not
required to be a part of a Mortgage File in accordance with the definition
thereof (such documents, together with copies of all documents in each Mortgage
File, the "Credit File"), shall be delivered to the applicable Servicer (and, in
the case of the Mortgage Loans sold to the Depositor by Bank of America, to Bank
of America) on or before the Closing Date and shall be held by such Servicer on
behalf of the Trustee in trust for the benefit of the Certificateholders (and as
holder of the Uncertificated Lower-Tier Interests, the Class A-MFL Regular
Interest and the Class A-JFL Regular Interest); provided, however, that the
applicable Mortgage Loan Seller shall not be required to deliver any draft
documents, internal notes, attorney-client privileged communications or credit
analyses.
(e) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall deliver, and hereby represents and
warrants that it has delivered, to the Trustee and the applicable Servicer, on
or before the Closing Date, a fully executed original counterpart of each of the
Mortgage Loan Purchase Agreements, as in full force and effect, without
amendment or modification, on the Closing Date.
(f) The Depositor shall use its best efforts to require that,
promptly after the Closing Date, but in all events within three Business Days
after the Closing Date each of the Mortgage Loan Sellers shall cause all funds
on deposit in escrow accounts maintained with respect to the Mortgage Loans in
the name of the applicable Mortgage Loan Seller or any other name to be
transferred to the applicable Servicer (or a Sub-Servicer) for deposit into
Servicing Accounts.
(g) The Trustee shall hold all such documents, records and funds on
behalf of the Trust in trust for the benefit of the Certificateholders.
Section 2.02 Acceptance by Trustee.
(a) The Trustee, by the execution and delivery of this Agreement,
acknowledges receipt by it or a Custodian on its behalf, subject to the
provisions of Section 2.01 and the further review provided for in this Section
2.02 and to any exceptions noted on the Trustee Exception Report, of the
applicable documents specified in clauses (i), (ii), (ix), (xvi) and (xix) of
the definition of "Mortgage File" with respect to each Mortgage Loan, of a fully
executed original counterpart of each of the Mortgage Loan Purchase Agreements
and of all other assets included in the Trust Fund, in good faith and without
notice of any adverse claim, and declares that it or a Custodian on its behalf
holds and will hold such documents (other than the documents referred to in
clause (xix) of the definition of "Mortgage File," which shall be held by the
applicable Servicer) and the other documents delivered or caused to be delivered
by the Mortgage Loan Sellers constituting the Mortgage Files, and that it holds
and will hold such other assets included in the Trust Fund, in trust for the
exclusive use and benefit of all present and future Certificateholders (and as
holder of the Uncertificated Lower-Tier Interests). To the extent that the
Mortgage File for a Mortgage Loan included in a Serviced Whole Loan relates to a
Serviced Companion Loan, the Trustee shall also hold such Mortgage File in trust
for the use and benefit of the holder of any related Serviced Companion Loan.
(b) Within 90 days after the later of the Closing Date or actual
receipt (but not later than 120 days after the Closing Date) (the "Initial
Certification Date"), the Trustee or a Custodian on its behalf shall review each
of the Mortgage Loan documents delivered or caused to be delivered by the
Mortgage Loan Sellers constituting the Mortgage Files; and, promptly following
such review (but in no event later than 120 days after the Closing Date), the
Trustee shall certify in writing (in the form attached hereto as Exhibit V-2) to
each of the Rating Agencies, the Depositor, the Servicers, the Special Servicer,
the Directing Certificateholder (provided it shall have identified itself, and
furnished to the Trustee a notice address for the delivery of such certificate)
and the Mortgage Loan Sellers that, as to each Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Mortgage Loan paid in full) and except as
specifically identified in any exception report annexed thereto, (i) all
documents specified in clauses (i) through (v), (ix), (x) (xi), (xii), and (xvi)
through (xix) (in the case of documents specified in clauses (xvi) through
(xix), to the extent the Trustee has actual knowledge that such documents are
supposed to be in the Mortgage File as indicated by the Mortgage Loan Checklist
delivered by each Mortgage Loan Seller with each closing document binder) (or,
with respect to clause (xix), a copy of such letter of credit if the Servicer
has the original or an officer's certificate as contemplated by the penultimate
sentence of Section 2.01(b) hereof), if any, of the definition of "Mortgage
File," as applicable, are in its possession, (ii) the foregoing documents
delivered or caused to be delivered by the Mortgage Loan Sellers 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 and (iii) based on such
examination and only as to the foregoing documents, the information set forth in
the Mortgage Loan Schedule with respect to the items specified in clauses (iv),
(vi) and (viii)(c) in the definition of "Mortgage Loan Schedule" is correct.
With respect to each Mortgage Loan, the related Mortgage Loan Seller shall
provide to the Trustee a Mortgage Loan Checklist, upon which the Trustee may
rely in determining which documents should be part of the Mortgage File. With
respect to each Mortgage Loan listed on an exception report, the Trustee shall
specifically identify such Mortgage Loan together with the nature of such
exception (in the form reasonably acceptable to the Trustee and the Mortgage
Loan Seller and specifically identifying items required to be in the Mortgage
File but never delivered and items which were delivered by the Mortgage Loan
Seller but are out for recording and have not been returned by the recorder's
office).
(c) The Trustee or a Custodian on its behalf shall review each of
the Mortgage Loan documents received thereby subsequent to the Closing Date;
and, every 90 days following the Initial Certification Date until the date that
all exceptions are eliminated. The Trustee shall certify in writing and shall
deliver such writing electronically to each of the Depositor, the applicable
Servicer, the Directing Certificateholder, the Special Servicer and the
applicable Mortgage Loan Seller that, as to each Mortgage Loan listed on the
Mortgage Loan Schedule (other than any Mortgage Loan as to which a Liquidation
Event has occurred) or any Mortgage Loan specifically identified in any
exception report annexed thereto (i) all documents specified in clauses (i)
through (v), (ix) through (xii) and (xvi) through (xix) (or, with respect to
clause (xix), a copy of such letter of credit if the applicable Servicer has the
original or an officer's certificate as contemplated by the penultimate sentence
of Section 2.01(b) hereof), if any, of the definition of "Mortgage File," as
applicable, are in its possession, (ii) the foregoing documents delivered or
caused to be delivered by the Mortgage Loan Sellers have been reviewed by it or
by a Custodian on its behalf and appear regular on their face and relate to such
Mortgage Loan, and (iii) based on such examination and only as to the foregoing
documents, the information set forth in the Mortgage Loan Schedule with respect
to the items specified in clauses (iv), (vi) and (viii)(c) in the definition of
"Mortgage Loan Schedule" is correct.
(d) It is herein acknowledged that neither the Trustee nor any
Custodian is under any duty or obligation (i) beyond review of the Mortgage Loan
Checklist and confirmation that the listed documents are present, to determine
whether any of the documents specified in clauses (v), (vi), (vii), (viii), (x),
(xiv), (xv), (xvi), (xviii), (xix) and (xxiii) through (xxv) of the definition
of "Mortgage File" exist or are required to be delivered by the Depositor, the
Mortgage Loan Sellers or any other Person 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 genuine,
enforceable, sufficient to perfect and maintain the perfection of a security
interest or appropriate for the represented purpose or that they are other than
what they purport to be on their face and, with respect to the documents
specified in clause (ix), whether the insurance is effective as of the date of
the recordation, whether all endorsements or riders issued are included in the
file or if the policy has not been issued whether any acceptable replacement
document has been dated the date of the related Mortgage Loan funding. Further,
with respect to the documents described in clause (xii) of the definition of
"Mortgage File," to the extent the Trustee has actual knowledge or is notified
of any fixture or real property UCC Financing Statements, the Trustee shall file
an assignment to the Trust with respect to such UCC Financing Statements in the
appropriate jurisdiction under the UCC at the expense of the related Mortgage
Loan Seller. The UCC Financing Statements to be assigned to the Trust (and in
the case of a Serviced Whole Loan, on behalf of the holder of any related
Serviced Companion Loans) will be delivered on current national forms, in
recordable form, and will be filed by the Trustee in the state of incorporation
of the related Mortgagor(s) as indicated on the documents provided.
(e) If, in the process of reviewing the Mortgage Files or at any
time thereafter, the Trustee or any Custodian discovers a defect in any Mortgage
File (a "Defect") the Trustee shall promptly so notify the Depositor, the
Directing Certificateholder, the applicable Servicer, the Special Servicer and
the applicable Mortgage Loan Seller (and in no event later than 90 days after
the Closing Date and every quarter thereafter, commencing with the quarter
ending June 30, 2007) by providing to each a written report delivered in an
electronic format (the "Trustee Exception Report") setting forth for each
affected Mortgage Loan, with particularity, the nature of such Defect (in form
reasonably acceptable to the Trustee and the Mortgage Loan Seller and
specifically identifying items required to be in the Mortgage File but never
delivered and items which were delivered by the Mortgage Loan Seller but are out
for recording and have not been returned by the recorder's office).
Section 2.03 Representations, Warranties and Covenants of the
Depositor; Mortgage Loan Sellers' Repurchase or Substitution of Mortgage Loans
for Defects in Mortgage Files and Breaches of Representations and Warranties.
(a) The Depositor hereby represents and warrants to the Trustee, for
its own benefit and the benefit of the Certificateholders and the holders of any
Serviced Companion Loan, and to the Servicers and the Special Servicer, 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, and the
Depositor has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement by it, and has the
power and authority to execute, deliver and perform this Agreement and all
the transactions contemplated hereby, including, but not limited to, the
power and authority to sell, assign and transfer the Mortgage Loans in
accordance with this Agreement;
(ii) Assuming the due authorization, execution and delivery of this
Agreement by each other party hereto, this Agreement and all of the
obligations of the Depositor hereunder are the legal, valid and binding
obligations of the Depositor, enforceable against the Depositor in
accordance with the terms of this Agreement, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors' rights generally, and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(iii) The execution and delivery of this Agreement and the
performance of its obligations hereunder by the Depositor will not
conflict with any provisions of any law or regulations to which the
Depositor is subject, or conflict with, result in a breach of or
constitute a default under any of the terms, conditions or provisions of
the certificate of incorporation or the by-laws of the Depositor or any
indenture, agreement or instrument to which the Depositor is a party or by
which it is bound, or any order or decree applicable to the Depositor, or
result in the creation or imposition of any lien on any of the Depositor's
assets or property, which would materially and adversely affect the
ability of the Depositor to carry out the transactions contemplated by
this Agreement; the Depositor has obtained any consent, approval,
authorization or order of any court or governmental agency or body
required for the execution, delivery and performance by the Depositor of
this Agreement;
(iv) There is no action, suit or proceeding pending or, to the
Depositor's knowledge, threatened against the Depositor in any court or by
or before any other governmental agency or instrumentality which would
materially and adversely affect the validity of the Mortgage Loans or the
ability of the Depositor to carry out the transactions contemplated by
this Agreement; and
(v) The Depositor is the lawful owner of the Mortgage Loans with the
full right to transfer the Mortgage Loans to the Trust and the Mortgage
Loans have been validly transferred to the Trust.
(b) The representations and warranties set forth in paragraph (a)
above shall survive the execution and delivery of the Agreement.
(c) If any of the Servicers, the Special Servicer or the Trustee
discovers or receives notice of a Defect in any Mortgage File or a breach of any
representation or warranty set forth in, or required to be made with respect to
a Mortgage Loan by the applicable Mortgage Loan Seller pursuant to, the related
Mortgage Loan Purchase Agreement (a "Breach"), which Defect or Breach, as the
case may be, materially and adversely affects the value of any Mortgage Loan or
the interests of any Certificateholders therein, the Servicers, the Special
Servicer or the Trustee, as applicable, shall give prompt written notice of such
Defect or Breach, as the case may be, (which notice shall be in addition to any
Trustee Exception Report) to the Depositor, each Rating Agency, the Servicers,
the Special Servicer, the Mortgage Loan Sellers, the Trustee, the Directing
Certificateholder, the holder of any Serviced Companion Loan and the applicable
Servicer or the Special Servicer (in the case of Specially Serviced Mortgage
Loans) shall request that the applicable Mortgage Loan Seller, not later than
the earlier of 90 days from the applicable Mortgage Loan Seller's receipt of
such notice or the Mortgage Loan Seller's discovery of such Breach, (i) cure
such Defect or Breach, as the case may be, in all material respects, (ii)
repurchase the affected Mortgage Loan at the applicable Purchase Price or in
conformity with the applicable Mortgage Loan Purchase Agreement or (iii)
substitute a Qualified Substitute Mortgage Loan for such affected Mortgage Loan
(provided that in no event shall any such substitution occur later than the
second anniversary of the Closing Date) and pay the applicable Servicer for
deposit into the Certificate Account, any Substitution Shortfall Amount in
connection therewith; provided, however, that if such Breach and Defect is
capable of being cured but not within such 90-day period, and the Mortgage Loan
Seller has commenced and is diligently proceeding with the cure of such Breach
or Defect within such 90-day period, the Mortgage Loan Seller shall have an
additional 90 days to complete such cure (or, failing such cure, to repurchase
the related Mortgage Loan or substitute a Qualified Substitute Mortgage Loan)
and provided, further, that with respect to such additional 90-day period, the
Mortgage Loan Seller shall have delivered an Officer's Certificate to the Rating
Agencies, the applicable Servicer, the Special Servicer and the Trustee setting
forth the reason such Breach or Defect is not capable of being cured within the
initial 90-day period and what actions the Mortgage Loan Seller is pursuing in
connection with the cure thereof and stating that the Mortgage Loan Seller
anticipates that such Breach or Defect will be cured within the additional
90-day period. Notwithstanding the foregoing, any Defect or Breach which causes
any Mortgage Loan not to be a "qualified mortgage" (within the meaning of
Section 860G(a)(3) of the Code, without regard to the rule of Treasury
Regulations Section 1.860G-2(f)(2) which causes a defective Mortgage Loan to be
treated as a qualified mortgage) shall be deemed to materially and adversely
affect the interest of Certificateholders therein, and such Mortgage Loan shall
be repurchased no later than the earlier of 90 days from the applicable Mortgage
Loan Seller's receipt of a notice of such Defect or Breach or the Mortgage Loan
Seller's discovery of such Breach or Defect. If the affected Mortgage Loan is to
be repurchased, the funds in the amount of the Purchase Price are to be
deposited by wire transfer in the Certificate Account. Notwithstanding the
foregoing, if a Mortgage Loan is not secured by a hotel, restaurant (operated by
the Mortgagor), healthcare facility, nursing home, assisted living facility,
self-storage facility, theatre (as sole collateral), mobile home park or fitness
center (operated by the Mortgagor) property, then the failure to deliver to the
Trustee copies of the UCC Financing Statements with respect to such Mortgage
Loan shall not be a material Defect or material Breach.
If one or more (but not all) of the Mortgage Loans constituting a
Cross-Collateralized Group are to be repurchased by the Mortgage Loan Seller as
contemplated by this Section 2.03(b), then, prior to the subject repurchase, the
Mortgage Loan Seller, as the case may be, or its designee shall use its
reasonable efforts, subject to the terms of the related Mortgage Loan(s), to
prepare and, to the extent necessary and appropriate, have executed by the
related Mortgagor and record, such documentation as may be necessary to
terminate the cross-collateralization between the Mortgage Loan(s) in such
Cross-Collateralized Group that are to be repurchased, on the one hand, and the
remaining Mortgage Loan(s) therein, on the other hand, such that those two
groups of Mortgage Loans are each secured only by the Mortgaged Properties
identified in the Mortgage Loan Schedule as directly corresponding thereto;
provided that no such termination shall be effected unless and until the
Directing Certificateholder, if one is then acting, has consented in its sole
discretion and the Trustee has received from the related Mortgage Loan Seller,
as the case may be, (i) an Opinion of Counsel to the effect that such
termination would not cause an Adverse REMIC Event to occur and (ii) written
confirmation from each Rating Agency that such termination will not result in a
downgrade, qualification or withdrawal of the then-current rating of the
Certificates or any Serviced Companion Loan Securities that are currently being
rated by such Rating Agency; and provided, further, that the Mortgage Loan
Seller, in the case of the related Mortgage Loans, may, at its option and within
30 days, purchase the entire subject Cross-Collateralized Group in lieu of
effecting a termination of the cross-collateralization. All costs and expenses
incurred by the Trustee or any Person acting on its behalf pursuant to this
paragraph shall be included in the calculation of the Purchase Price for the
Mortgage Loan(s) to be repurchased. If the cross-collateralization of any
Cross-Collateralized Group cannot be terminated as contemplated by this
paragraph, then, for purposes of (i) determining the materiality of any Breach
or Defect, as the case may be, and (ii) the application of remedies, such Breach
or Defect shall be treated as a Breach or Defect as to each Mortgage Loan in the
Cross-Collateralized Group and such Cross-Collateralized Group shall be treated
as a single Mortgage Loan. Solely for the purpose of complying with the REMIC
Provisions, the Mortgagors of any Cross-Collateralized Group are intended
third-party beneficiaries of a release of cross-collateralization that is
permitted by the provisions of this paragraph, and the provisions of this
paragraph may not be amended without the consent of all such Mortgagors,
provided, however, that such Mortgagors shall not be third-party beneficiaries
of any other provision of this Agreement and shall have no rights with respect
to this Agreement except as set forth in this paragraph. In addition, the
foregoing paragraph shall not impose any additional obligations on the Servicers
or the Special Servicer with respect to any Mortgagors.
(d) In connection with any repurchase of a Mortgage Loan
contemplated by this Section 2.03, the Trustee, the Servicers (with respect to
any such Mortgage Loan other than a Specially Serviced Mortgage Loan) and the
Special Servicer (with respect to any such Mortgage Loan that is a Specially
Serviced Mortgage Loan) shall each tender to the applicable Mortgage Loan
Seller, upon delivery (i) to each of the Servicers or the Special Servicer, as
applicable, of a trust receipt and (ii) to the Trustee by the Servicers or the
Special Servicer, as applicable, of a Request for Release and an acknowledgement
by such Servicer or Special Servicer, as applicable, of its receipt of the
Purchase Price executed by the applicable Mortgage Loan Seller, all portions of
the Mortgage File and other documents pertaining to such Mortgage Loan possessed
by it, and each document that constitutes a part of the Mortgage File that was
endorsed or assigned to the Trustee shall be endorsed or assigned in the form of
endorsement or assignment provided to the Trustee by the applicable Mortgage
Loan Seller, as the case may be, to the applicable Mortgage Loan Seller in the
same manner as provided in Section 6 of the related Mortgage Loan Purchase
Agreement; provided, however, that the applicable Servicer or Special Servicer,
as applicable, shall use reasonable efforts to cooperate in furnishing necessary
information to the Mortgage Loan Seller in connection with such Mortgage Loan
Seller's preparation of such endorsement or assignment.
(e) Section 3 of each of the Mortgage Loan Purchase Agreements
provides the sole remedy available to the Certificateholders, or the Trustee on
behalf of the Certificateholders, respecting any Defect in a Mortgage File or
any Breach of any representation or warranty set forth in or required to be made
pursuant to Section 2 of each of the Mortgage Loan Purchase Agreements.
(f) The Special Servicer shall, for the benefit of the
Certificateholders and the Trustee (as holder of the Uncertificated Lower-Tier
Interests, the Class A-MFL Regular Interest and the Class A-JFL Regular
Interest), enforce the obligations of the applicable Mortgage Loan Seller under
Section 3 of the applicable Mortgage Loan Purchase Agreement. Such enforcement,
including, without limitation, the legal prosecution of claims, shall be carried
out in accordance with the Servicing Standard. The Trustee, the Servicers (to
the extent that the Trustee or Servicers incur such costs) and the Special
Servicer, as the case may be, shall be reimbursed for the reasonable costs of
such enforcement, in each case with interest at the Reimbursement Rate: first,
from a specific recovery of costs, expenses or attorneys' fees against the
applicable Mortgage Loan Seller; second, pursuant to Section 3.05(e)(vii) (with
respect to the related Mortgage Loan) or Section 3.05(e)(vii) (with respect to
any Serviced Whole Loan), out of the related Purchase Price, to the extent that
such expenses are a specific component thereof; and third, if at the conclusion
of such enforcement action it is determined that the amounts described in
clauses first and second are insufficient, then pursuant to Section
3.05(a)(viii) (with respect to the related Mortgage Loan) or Section
3.05(e)(viii) (with respect to any Serviced Whole Loan), out of general
collections on the Mortgage Loans on deposit in the Certificate Account and/or
Serviced Whole Loan Custodial Account, as applicable.
Section 2.04 Execution of Certificates; Issuance of Uncertificated
Lower-Tier Interests.
(a) The Trustee hereby acknowledges the assignment to it of the
Mortgage Loans, and, subject to Sections 2.01 and 2.02, the delivery to it or a
Custodian on its behalf of the Mortgage Files and a fully executed original
counterpart of each of the Mortgage Loan Purchase Agreements, together with the
assignment to it of all other assets included in the Trust Fund. Concurrently
with such assignment and delivery and in exchange therefor, the Trustee (i)
acknowledges the issuance of the Uncertificated Lower-Tier Interests and the
residual interest in the Lower-Tier REMIC, represented by the Class LR
Certificates, to or upon the order of the Depositor, in exchange for the
Mortgage Loans and the other property comprising the Lower-Tier REMIC, receipt
of which is hereby acknowledged, (ii) acknowledges and hereby declares that it
holds the Uncertificated Lower-Tier Interests on behalf of the Upper-Tier REMIC
and Holders of the Certificates (other than the Class LR Certificates) and (iii)
immediately thereafter, the Trustee acknowledges that it has caused the
Certificate Registrar to execute and cause the Authenticating Agent to
authenticate and to deliver to or upon the order of the Depositor, in exchange
for the Uncertificated Lower-Tier Interests, the Regular Certificates (other
than the Class A-MFL Certificates and the Class A-JFL Certificates), the Class
A-MFL Regular Interest and the Class A-JFL Regular Interest and the Class R
Certificates, and the Depositor hereby acknowledges the receipt by it or its
designees, of such Certificates in authorized Denominations evidencing the
entire beneficial ownership of the Upper-Tier REMIC.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all the right, title and interest of the Depositor in and to the Class A-MFL
Regular Interest and the Class A-JFL Regular Interest to the Trustee for the
benefit of the respective Holders of the Class A-MFL and Class A-JFL
Certificates, respectively. The Trustee (i) acknowledges the assignment to it of
the Class A-MFL Regular Interest and the Class A-JFL Regular Interest and
acknowledges that it has executed the Swap Contracts, (ii) declares that it
holds and will hold the Class A-MFL Regular Interest and Class A-JFL Regular
Interest and respective Swap Contract in trust for the exclusive use and benefit
of all present and future Holders of the Class A-MFL and the Class A-JFL
Certificates and (iii) declares that it has caused the Certificate Registrar to
execute, and has caused the Authenticating Agent to authenticate and to deliver
to or upon the order of the Depositor, in exchange for the Class A-MFL Regular
Interest and the Class A-JFL Regular Interest, respectively, and for entering
into the respective Swap Contracts, and the Depositor hereby acknowledges the
receipt by it or its designees of the Class A-MFL and Class A-JFL Certificates
in authorized Denominations.
[End of Article II]
ARTICLE III
ADMINISTRATION AND
SERVICING OF THE TRUST FUND
Section 3.01 Servicer to Act as Servicer; Special Servicer to Act as
Special Servicer; Administration of the Mortgage Loans.
(a) Each of the Servicers and the Special Servicer shall diligently
service and administer the applicable Mortgage Loans and Serviced Companion
Loans it is obligated to service pursuant to this Agreement (which Mortgage
Loans specifically exclude the Non-Serviced Mortgage Loans) on behalf of the
Trust and in the best interests of and for the benefit of the Certificateholders
and the Trustee (as holder of the Uncertificated Lower-Tier Interests, the Class
A-MFL Regular Interest and the Class A-JFL Regular Interest) (and, in the case
of the Serviced Whole Loans, the holders of the related Serviced Companion
Loans, as a collective whole, taking into consideration that the Serviced B Note
is subordinate to the related Mortgage Loan and any related Serviced Pari Passu
Loan) and the Trustee (as holder of the Uncertificated Lower-Tier Interests)
and, in the case of each Serviced Whole Loan, on behalf of the holders of any
related Serviced Companion Loan (as a collective whole, taking into
consideration that the Serviced B Note is subordinate to the related Mortgage
Loan and any related Serviced Pari Passu Loan) (as determined by the applicable
Servicer or the Special Servicer, as the case may be, in its good faith and
reasonable judgment) in accordance with applicable law, the terms of this
Agreement, the terms of the respective Mortgage Loans and, in the case of each
Serviced Whole Loan, the terms of the related Serviced Companion Loan and the
related Co-Lender Agreement, and, to the extent consistent with the foregoing,
in accordance with the higher of the following standards of care: (1) in the
same manner in which, and with the same care, skill, prudence and diligence with
which the applicable Servicer or Special Servicer, as the case may be, services
and administers similar mortgage loans for other third-party portfolios, giving
due consideration to the customary and usual standards of practice of prudent
institutional, multifamily and commercial mortgage lenders servicing their own
mortgage loans and (2) the same care, skill, prudence and diligence with which
the applicable Servicer or the Special Servicer, as the case may be, services
and administers similar mortgage loans owned by such Servicer or the Special
Servicer, as the case may be, with a view to the maximization of timely recovery
of principal and interest on a net present value basis on the Mortgage Loans
(and, in the case of any Serviced Whole Loan, any related Serviced Companion
Loans, as a collective whole, taking into consideration that the Serviced B Note
is subordinate to the related Mortgage Loan and any related Serviced Pari Passu
Loan) or Specially Serviced Mortgage Loans, as applicable, and the best
interests of the Trust and the Certificateholders and, in the case of each
Serviced Whole Loan, on behalf of the holders of any related Serviced Companion
Loans (as a collective whole, taking into consideration that the Serviced B Note
is subordinate to the related Mortgage Loan and any related Serviced Pari Passu
Loan), as determined by the applicable Servicer or the Special Servicer, as the
case may be, in its reasonable judgment, but without regard to: (i) any
relationship that either Servicer, the Special Servicer or any Affiliate of
either Servicer or the Special Servicer may have with any Mortgagor, any
Mortgage Loan Seller, any holder of Additional Debt, or any other parties to
this Agreement; (ii) the ownership of any Certificate or any Serviced Companion
Loan Securities by either Servicer, the Special Servicer or any Affiliate of
either Servicer or Special Servicer, as applicable; (iii) the Servicer's
obligation to make Advances; (iv) the Servicers' or Special Servicer's, as the
case may be, right to receive compensation for its services and reimbursement
for its costs hereunder or with respect to any particular transaction; (v) the
ownership, servicing or management for others of any other mortgage loans or
mortgaged properties by the Servicers or Special Servicer or any affiliate of
either Servicer or Special Servicer, as applicable; and (vi) any debt
(including, without limitation, any mezzanine financing) that the Servicers or
Special Servicer or any affiliate of either Servicer or Special Servicer, as
applicable has extended to any Mortgagor (the foregoing, collectively referred
to as the "Servicing Standard"). Without limiting the foregoing, subject to
Section 3.21, the Special Servicer shall be obligated to service and administer
(i) any Mortgage Loans (other than the Non-Serviced Mortgage Loans) as to which
a Servicing Transfer Event has occurred and is continuing and the Serviced
Companion Loan as to which a Servicing Transfer Event with respect to the
related Mortgage Loan has occurred and is continuing (the "Specially Serviced
Mortgage Loans") and (ii) any REO Properties; provided, that the applicable
Servicer shall continue to receive payments, make all calculations, maintain all
accounts (other than the Interest Reserve Account and the REO Account) and
prepare, or cause to be prepared, all reports to the Trustee required hereunder
with respect to the Specially Serviced Mortgage Loans, except for the reports
specified herein as prepared by the Special Servicer, as if no Servicing
Transfer Event had occurred and with respect to the REO Properties (and the
related REO Loans) as if no REO Acquisition had occurred, and to render such
incidental services with respect to such Specially Serviced Mortgage Loans and
REO Properties as are specifically provided for herein; provided, further,
however, that the applicable Servicer shall not be liable for failure to comply
with such duties insofar as such failure results from a failure of the Special
Servicer to provide sufficient information to such Servicer to comply with such
duties or failure by the Special Servicer to otherwise comply with its
obligations hereunder. Each Mortgage Loan or Serviced Whole Loan that becomes a
Specially Serviced Mortgage Loan shall continue as such until satisfaction of
the conditions specified in Section 3.21(a). Without limiting the foregoing,
subject to Section 3.21, the Servicers shall be obligated to service and
administer all Mortgage Loans (other than the Non-Serviced Mortgage Loans) or
Serviced Companion Loans which are not Specially Serviced Mortgage Loans;
provided, that the Special Servicer shall make the inspections, use its
reasonable efforts to collect the statements and shall prepare the reports in
respect of the related Mortgaged Properties with respect to Specially Serviced
Mortgage Loans in accordance with Section 3.12.
The parties hereto acknowledge that each Non-Serviced Mortgage Loan
and any related Mortgaged Property are being serviced and administered by the
related Non-Serviced Mortgage Loan Servicer under the related Non-Serviced
Mortgage Loan Pooling Agreement. The Servicers, the Special Servicer or the
Trustee shall have no obligation or authority to supervise such Non-Serviced
Mortgage Loan Servicer or the Non-Serviced Mortgage Loan Trustee or (other than
with respect to back-up advances made by the Trustee, if any) to make Servicing
Advances with respect to such Non-Serviced Mortgage Loan. The obligation of the
Servicer to provide information and collections to the Trustee and the
Certificateholders with respect to each Non-Serviced Mortgage Loan shall be
dependent on its receipt of the corresponding information and collections from
the Non-Serviced Mortgage Loan Servicer (upon which the Servicer may
conclusively rely).
(b) Subject only to the Servicing Standard, the terms of this
Agreement, the terms of the respective Mortgage Loans (other than the
Non-Serviced Mortgage Loans) and Serviced Companion Loans, applicable law and,
in the case of each Serviced Whole Loan, the related Co-Lender Agreement, the
Servicers and the Special Servicer each shall 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 for which it is
responsible which it may deem necessary or desirable. Without limiting the
generality of the foregoing, each of the Servicers and the Special Servicer, in
its own name, is hereby authorized and empowered by the Trustee and obligated to
execute and deliver, on behalf of the Certificateholders and the Trustee or any
of them, with respect to each Mortgage Loan (other than a Non-Serviced Mortgage
Loan) or Serviced Whole Loan it is obligated to service under this Agreement:
(i) any and all financing statements, continuation statements, financing
statements in lieu of continuation statements and other documents or instruments
necessary to maintain the lien created by the related Mortgage or other security
document in the related Mortgage File on the related Mortgaged Property and
related collateral; (ii) subject to Section 3.20, any and all modifications,
waivers, amendments or consents to or with respect to any documents contained in
the related Mortgage File; (iii) any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge, and all other
comparable instruments; and (iv) any and all instruments that may be required to
be executed on behalf of the Trustee in connection with the defeasance of such a
Mortgage Loan as contemplated in this Agreement. Subject to Section 3.10, the
Trustee shall, upon the receipt of a written request of a Servicing Officer,
execute and deliver to the Servicers and the Special Servicer any powers of
attorney and other documents prepared by the Servicers and the Special Servicer
and necessary or appropriate to enable the Servicers and the Special Servicer to
carry out their servicing and administrative duties hereunder. Notwithstanding
anything herein to the contrary, neither the Servicers nor the Special Servicer
shall without the Trustee's written consent: (i) initiate any action, suit or
proceeding solely under the Trustee's name without indicating the applicable
Servicer's or the Special Servicer's, as applicable, representative capacity or
(ii) take any action with the intent to cause, and which actually does cause,
the Trustee to be registered to do business in any state. Each of the Servicers
and the Special Servicer shall indemnify the Trustee for any and all reasonable
out-of-pocket costs, liabilities and expenses incurred by the Trustee in
connection with the negligent or willful misuse of such powers of attorney by
such Servicer or the Special Servicer, as applicable.
(c) To the extent that either Servicer is permitted pursuant to the
terms of the related Mortgage Loan documents (or by applicable law, if such
documents are silent) to exercise its discretion with respect to any action
which requires a confirmation of the Rating Agencies that such action will not
result in the downgrade, withdrawal or qualification of the ratings of any Class
of Certificates or any class of Serviced Companion Loan Securities, the related
Servicer shall require the costs of such written confirmation to be borne by the
related Mortgagor. To the extent the terms of the related Mortgage Loan
documents require the Mortgagor to bear the costs of any confirmation of the
Rating Agencies that an action will not result in the downgrade, withdrawal or
qualification of the ratings of any Class of Certificates or any class of
Serviced Companion Loan Securities, the Servicer shall not waive the requirement
that such costs and expenses be borne by the related Mortgagor.
(d) The relationship of each of the Servicers and the Special
Servicer to the Trustee and each holder of a Serviced Companion Loan under this
Agreement is intended by the parties to be that of an independent contractor and
not that of a joint venturer, partner or, except as expressly provided in this
Agreement, agent.
(e) The Servicers shall, to the extent not prohibited by the related
Mortgage Loan documents and consistent with the Servicing Standard, permit
Escrow Payments to be invested only in Permitted Investments.
(f) With respect to the pool of Mortgage Loans, Servicer No. 1 shall
service all of the Mortgage Loans except the Non-Serviced Mortgage Loans and the
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Mortgage Loan. Servicer No. 2 shall service the ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Mortgage Loan. Neither Servicer will have any responsibility or liability
in respect of the other Mortgage Loan(s) serviced pursuant to this Agreement by
the other Servicer.
Section 3.02 Collection of Mortgage Loan Payments.
(a) Each of the Servicers (with respect to the Mortgage Loans other
than the Specially Serviced Mortgage Loans), and the Special Servicer (with
respect to Specially Serviced Mortgage Loans), shall make reasonable efforts to
collect all payments called for under the terms and provisions of the Mortgage
Loans (other than Non-Serviced Mortgage Loans) or Serviced Whole Loans it is
obligated to service hereunder, and shall follow such collection procedures as
are consistent with this Agreement (including, without limitation, the Servicing
Standard). Consistent with the foregoing, the Servicers, or the Special Servicer
each may in its discretion waive any Late Payment Charges or Default Interest in
connection with any delinquent payment on a Mortgage Loan it is obligated to
service hereunder.
(b) All amounts collected on any Mortgage Loan or Serviced Whole
Loan in the form of payments from Mortgagors, Insurance Proceeds and
Condemnation Proceeds or Liquidation Proceeds with respect to any Mortgage Loan
or Serviced Whole Loan shall be applied to amounts due and owing under the
related Mortgage Note and Mortgage (including, without limitation, for principal
and accrued and unpaid interest) in accordance with the express provisions of
the related Mortgage Note and Mortgage and, in the absence of such express
provisions, shall be applied (after reimbursement to the applicable Servicer,
the Special Servicer and/or the Trustee, for any related Advances and interest
thereon as provided herein): first, as a recovery (allocable as principal) of a
Workout-Delayed Reimbursement Amount or Nonrecoverable Advances, in each case,
that were paid from 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," "Loan Group 1
Principal Distribution Amount" or "Loan Group 2 Principal Distribution Amount";
second, as a recovery of accrued and unpaid interest on such Mortgage Loan or
Serviced Whole Loan at the related Mortgage Rate in effect from time to time to
but not including the Due Date in the Due Period of receipt; third, as a
recovery of principal of such Mortgage Loan or Serviced Whole Loan then due and
owing; fourth, in accordance with the Servicing Standard, as a recovery of any
other amounts due and owing on such Mortgage Loan or Serviced Whole Loan,
including, without limitation, Penalty Charges and Yield Maintenance Charges and
fifth, as a recovery of principal of such Mortgage Loan or Serviced Whole Loan
to the extent of its entire unpaid principal balance. Notwithstanding the
preceding sentence, such provisions shall not be deemed to affect the priority
of distribution of payments. To the extent that such amounts are paid by a party
other than a Mortgagor, such amounts shall be deemed to have been paid in
respect of a purchase of all or part of the Mortgaged Property (in the case of
Insurance Proceeds and Condemnation Proceeds or Liquidation Proceeds) and then
paid by the Mortgagor under the Mortgage Loan in accordance with the second
preceding sentence. Amounts collected on any REO Loan shall be deemed to be
applied in accordance with the definition thereof.
(c) To the extent consistent with the terms of the Mortgage Loans or
Serviced Companion Loans and applicable law, the Servicers shall apply all
Insurance Proceeds and Condemnation Proceeds it receives on a day other than the
Due Date to amounts due and owing under such Mortgage Loan or Serviced Whole
Loan as if such Insurance Proceeds and Condemnation Proceeds were received on
the Due Date immediately succeeding the month in which such Insurance Proceeds
and Condemnation Proceeds were received.
(d) All amounts received by the Trust with respect to a Serviced
Whole Loan shall be applied to amounts due and owing under such Serviced Whole
Loan (including for principal and accrued and unpaid interest) in accordance
with the express provisions of the related Mortgage Notes, the related Mortgage,
the related loan agreement, if any, and the related Co-Lender Agreement.
(e) Reserved.
(f) Promptly following the Closing Date, the Trustee shall send
written notice (in the form attached hereto as Exhibit W) to each Non-Serviced
Mortgage Loan Trustee and Non-Serviced Mortgage Loan Servicer stating that, as
of the Closing Date, the Trustee is the holder of such Non-Serviced Mortgage
Loan and directing such Non-Serviced Mortgage Loan Servicer to remit to the
applicable Servicer all amounts payable to, and to forward, deliver or otherwise
make available, as the case may be, to the applicable Servicer all reports,
statements, documents, communications and other information that are to be
forwarded, delivered or otherwise made available to, the holder of the
Non-Serviced Mortgage Loan under the related Co-Lender Agreement and the related
Non-Serviced Mortgage Loan Pooling Agreement. The Servicer shall, on the day of
receipt thereof, deposit into the Certificate Account all amounts received with
respect to such Non-Serviced Mortgage Loan and the related Mortgaged Property.
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts.
(a) With respect to each Mortgage Loan (other than the Non-Serviced
Mortgage Loans) or Serviced Whole Loan, each Servicer shall establish and
maintain one or more accounts (the "Servicing Accounts"), into which all Escrow
Payments shall be deposited and retained, and shall administer such Servicing
Accounts in accordance with the loan documents. Amounts on deposit in Servicing
Accounts may only be invested in accordance with the terms of the related loan
documents or in Permitted Investments. Servicing Accounts shall at all times be
Eligible Accounts; provided, however, that in the event that the ratings of the
financial institution holding such account are downgraded, such that the
Servicing Account is no longer an Eligible Account, the respective Servicer
shall promptly transfer such account to an Eligible Account. Withdrawals of
amounts so deposited from a Servicing Account may be made only to: (i) effect
payment of items for which Escrow Payments were collected and comparable items;
(ii) reimburse the Servicer, the Special Servicer or the Trustee, as applicable,
for any Servicing Advances; (iii) refund to Mortgagors any sums as may be
determined to be overages; (iv) pay interest to Mortgagors on balances in the
Servicing Account, if required by applicable law or the terms of the related
Mortgage Loan or Serviced Whole Loan and as described below or, if not so
required, to the applicable Servicer; (v) withdraw amounts deposited in error or
(vi) clear and terminate the Servicing Account at the termination of this
Agreement in accordance with Section 9.01. As part of their servicing duties,
each Servicer shall pay or cause to be paid to the Mortgagors interest on funds
in Servicing Accounts, to the extent required by law or the terms of the related
Mortgage Loan or Serviced Whole Loan; provided, however, that in no event shall
either Servicer be required to pay any amounts to the Mortgagors in excess of
Net Investment Earnings, if any, attributed to the related Mortgage Loan or
Serviced Whole Loan and the related Servicing Account.
(b) The Special Servicer, in the case of REO Loans, and the
Servicers, in the case of all other Mortgage Loans (other than any Non-Serviced
Mortgage Loan) and Serviced Whole Loans, shall maintain accurate records with
respect to each 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. The Special Servicer, in the case of REO Loans (other than any REO Loan
succeeding the Non-Serviced Mortgage Loan), and the Servicers, in the case of
all other Mortgage Loans (other than any Non-Serviced Mortgage Loan) and
Serviced Companion Loans, shall 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 shall effect payment thereof from
the Servicing Account and then from the REO Account (in the case of REO Loans)
or by the Servicer as Servicing Advances prior to the applicable penalty or
termination date and, in any event, prior to the institution of foreclosure or
similar proceedings with respect to the related Mortgaged Property for
nonpayment of such items, employing for such purpose Escrow Payments (which
shall be so applied by the Servicers at the written direction of the Special
Servicer in the case of REO Loans) as allowed under the terms of the related
Mortgage Loan. The Services shall service and administer any reserve accounts
(including monitoring, maintaining or changing the amounts of required escrows)
in accordance with the terms of such Mortgage Loan or Serviced Whole Loan and
the Servicing Standard. To the extent that a Mortgage Loan or Serviced Whole
Loan does not require a Mortgagor to escrow for the payment of real estate
taxes, assessments, insurance premiums, ground rents (if applicable) and similar
items, the Special Servicer, in the case of Specially Serviced Mortgage Loans
with respect to which either Servicer has notified the Special Servicer of
non-payment, and the Servicers, in the case of all other Mortgage Loans (other
than any Non-Serviced Mortgage Loan) and Serviced Companion Loans, shall use
reasonable efforts consistent with the Servicing Standard to enforce the
requirement of the related Mortgage that the Mortgagor make payments in respect
of such items at the time they first become due and, in any event, prior to the
institution of foreclosure or similar proceedings with respect to the related
Mortgaged Property for nonpayment of such items.
(c) In accordance with the Servicing Standard and for all Mortgage
Loans (other than any Non-Serviced Mortgage Loan) and Serviced Companion Loans,
the applicable Servicer shall advance with respect to each related Mortgaged
Property (including any related REO Property) all such funds as are necessary
for the purpose of effecting the payment of (i) real estate taxes, assessments
and other similar items that are or may become a lien thereon, (ii) ground rents
(if applicable) and (iii) premiums on Insurance Policies, in each instance if
and to the extent Escrow Payments collected from the related Mortgagor (or REO
Revenues in the case of any REO Property) are insufficient to pay such item when
due and the related Mortgagor has failed to pay such item on a timely basis, and
provided, however, that the particular advance would not, if made, constitute a
Nonrecoverable Servicing Advance. If such an advance would constitute a
Nonrecoverable Advance, and the payment of such amount is (i) necessary to
preserve the related Mortgaged Property and (ii) would be in the best interest
of the Certificateholders and, in the case of the Serviced Whole Loan, the
holders of any related Serviced Companion Loans, as a collective whole (taking
into account that the Serviced B Note is subordinate to the related Mortgage
Loan and Serviced Pari Passu Loan), then the Servicer shall make such payment
from amounts in the Certificate Account (or if a Serviced Whole Loan is
involved, first from amounts in the related Serviced Whole Loan Custodial
Account and then from amounts in the Certificate Account). With respect to the
payment of taxes and assessments, the Servicers, the Special Servicer or the
Trustee, as applicable, shall not be required to make such advance until the
earlier of (i) with respect to the Servicers, five Business Days after the
applicable Servicer has received confirmation that such item has not been paid
and with respect to the Trustee, five Business Days after receipt of
confirmation that the applicable Servicer has failed, upon the expiration of any
applicable grace period, to make such Advance or (ii) only with respect to those
Mortgage Loans or Serviced Whole Loans for which either Servicer maintains a
Servicing Account pursuant to Section 3.03(a) hereof for the purpose of
receiving Escrow Payments in connection with taxes and assessments and other
items that are subject to Servicing Advances, the Business Day prior to the date
after which any penalty or interest would accrue in respect of such taxes or
assessments (if such Servicer or Trustee has actual knowledge thereof). The
Special Servicer shall give the applicable Servicer and the Trustee no less than
five Business Days' written (facsimile) notice before the date on which such
Servicer is requested to make any Servicing Advance with respect to a given
Specially Serviced Mortgage Loan or REO Property; provided, however, that only
two Business Days' notice shall be required in respect of Servicing Advances
required to be made on an urgent or emergency basis (which may include, without
limitation, Servicing Advances required to make tax or insurance payments), and
provided, further, that the Special Servicer shall not be entitled to make such
a request (other than for Servicing Advances required to be made on an urgent or
emergency basis) to either Servicer more frequently than once per calendar month
(although such request may relate to more than one Servicing Advance). The
Special Servicer may, with respect to any Servicing Advance required to be made
on an emergency or urgent basis (which may include, without limitation,
Servicing Advances required to make tax or insurance payments) make such advance
unless such advance would constitute a Nonrecoverable Advance. In addition, the
Special Servicer shall provide the Servicers and the Trustee with such
information in its possession as the Servicers or the Trustee, as applicable,
may reasonably request to enable the Servicers or the Trustee, as applicable, to
determine whether a requested Servicing Advance would constitute a
Nonrecoverable Advance. All such Advances shall be reimbursable in the first
instance from related collections from the Mortgagors and further as provided in
Section 3.05. No costs incurred by the Servicer or the Special Servicer in
effecting the payment of real estate taxes, assessments and, if applicable,
ground rents on or in respect of the Mortgaged Properties shall, for purposes
hereof, including, without limitation, calculating monthly distributions to
Certificateholders and, in the case of the Serviced Whole Loans, the holders of
any related Serviced Companion Loans, be added to the unpaid principal balances
of the related Mortgage Loans and Serviced Companion Loans notwithstanding that
the terms of such Mortgage Loans and Serviced Companion Loans so permit. Neither
Servicer shall be required to make any Servicing Advance that it determines
would be a Nonrecoverable Advance.
(d) The parties acknowledge that, pursuant to the related
Non-Serviced Mortgage Loan Pooling Agreement, the related Non-Serviced Mortgage
Loan Servicer is obligated to make servicing advances with respect to the
related Non-Serviced Whole Loan. The related Non-Serviced Mortgage Loan Servicer
shall be entitled to reimbursement out of general collections on the Mortgage
Loans and the REO Properties for the pro rata portion of any such Servicing
Advances (with, in each case, any accrued and unpaid interest thereon provided
for under the related Non-Serviced Mortgage Loan Pooling Agreement) determined
to be nonrecoverable in the manner set forth in the related Non-Serviced
Mortgage Loan Pooling Agreement, the related Co-Lender Agreement and Section
3.05(a) of this Agreement.
With respect to a Serviced Whole Loan and following the
securitization of any related Serviced Pari Passu Loan, the applicable Servicer
shall seek payment or reimbursement for the pro rata portion of the Servicing
Advances in respect of such Serviced Whole Loan (with any accrued and unpaid
interest thereon provided for under this Agreement) determined to be
Nonrecoverable Servicing Advances hereunder, that is allocable to such Serviced
Companion Loan, out of general collections in the account related to such Other
Securitization in accordance with Section 3.05(f) hereof. To the extent that the
Servicer or Special Servicer fails to make a Servicing Advance that it is
required to make under this Agreement and the Trustee has notice of this
failure, the Trustee will make the required Servicing Advance in accordance with
the terms of this Agreement.
(e) No more frequently than once per calendar month, the Special
Servicer may require the Servicers, and the Servicers shall be obligated, out of
the Servicers' own funds, to reimburse the Special Servicer for any Servicing
Advances (other than Nonrecoverable Servicing Advances) made by but not
previously reimbursed to the Special Servicer, together with interest thereon at
the Reimbursement Rate from the date made to, but not including, the date of
reimbursement. Any request by the Special Servicer that the applicable Servicer
advance a Servicing Advance shall be deemed to be a determination by the Special
Servicer that such requested Servicing Advance is not a Nonrecoverable Advance
and the applicable Servicer and the Trustee shall be entitled to rely on such
determination, provided that such determination shall not be binding upon the
applicable Servicer or the Trustee. Such reimbursement and any accompanying
payment of interest shall be made within 10 days of the request therefor by wire
transfer of immediately available funds to an account designated by the Special
Servicer. Upon the 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 3.03(e), such Servicer shall for all purposes of
this Agreement be deemed to have made such Servicing Advance at the same time as
the Special Servicer actually made such Servicing Advance, and accordingly, such
Servicer shall be entitled to reimbursement for such Servicing Advance, together
with interest thereon in accordance with Section 3.03(f) below at the same time,
in the same manner and to the same extent as such Servicer would otherwise have
been entitled if it had actually made such Servicing Advance at the time the
Special Servicer did.
Notwithstanding the foregoing provisions of this Section 3.03(e),
the Servicers shall not be required to reimburse the Special Servicer for, or to
make at the direction of the Special Servicer, any Servicing Advance if the
applicable Servicer determines in its reasonable, good faith judgment that such
Servicing Advance, although not characterized by the Special Servicer as a
Nonrecoverable Servicing Advance, is a Nonrecoverable Servicing Advance. The
Servicers shall notify the Special Servicer in writing of such determination
and, if applicable, such Nonrecoverable Servicing Advance shall be reimbursed to
the Special Servicer out of the Certificate Account (or, if a Serviced Whole
Loan is involved, first out of related Serviced Whole Loan Custodial Account and
then out of the Certificate Account) pursuant to Section 3.03(f) below. The
Special Servicer shall provide the Servicers with any information the Servicers
reasonably requests to determine whether any Servicing Advance would be a
Nonrecoverable Advance. In addition, any determination made by the Special
Servicer, at its option, that an Advance is a Nonrecoverable Advance shall be
conclusive and binding on the Servicers and the Trustee, provided that the
Servicers or the Trustee, as applicable, has been given written notice of such
determination.
(f) In connection with its recovery of any Servicing Advance out of
the Certificate Account pursuant to Section 3.05(a) or the Serviced Whole Loan
Custodial Account pursuant to Section 3.05(e), as applicable, each of the
Servicers, the Special Servicer or the Trustee, as the case may be, shall be
entitled to receive, first out of any Penalty Charges (as described in Section
3.11), and then out of any amounts then on deposit in the Certificate Account or
the Serviced Whole Loan Custodial Account, as applicable, interest at the
Reimbursement Rate in effect from time to time, accrued on the amount of such
Servicing Advance from the date made to, but not including, the date of
reimbursement. The Servicers shall reimburse themselves, the Special Servicer or
the Trustee, as the case may be, for any outstanding Servicing Advance as soon
as practically possible after funds available for such purpose are deposited in
the Certificate Account in accordance with Section 3.05(a)(iv) or if a Serviced
Whole Loan is involved, in the related Serviced Whole Loan Custodial Account in
accordance with Section 3.05(e)(iv).
(g) To the extent an operations and maintenance plan is required to
be established and executed pursuant to the terms of a Mortgage Loan (other than
a Non-Serviced Mortgage Loan) or Serviced Whole Loan, the Servicer shall request
from the Mortgagor written confirmation thereof within a reasonable time after
the later of 90 days following 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 Mortgage Loan (other than the
Non-Serviced Mortgage Loan) or Serviced Whole Loan, the applicable Servicer
shall request from the Mortgagor written confirmation of such actions and
remediations within a reasonable time after the later of 90 days following the
Closing Date and the date as of which such action or remediations are required
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(g), the
applicable Servicer shall, in accordance with the Servicing Standard, determine
whether the related Mortgagor has failed to perform its obligations under the
Mortgage Loan or Serviced Whole Loan and report any such failure to the Special
Servicer within a reasonable time after the later of May 31, 2007 and the date
as of which such actions or remediations are required to be or to have been
taken or completed.
Section 3.04 The Certificate Account; the Lower-Tier Distribution
Account; the Upper-Tier Distribution Account; the Excess Liquidation Proceeds
Reserve Account; the Interest Reserve Account; the Floating Rate Accounts and
the Serviced Whole Loan Custodial Accounts.
(a) Each Servicer shall establish and maintain, or cause to be
established and maintained, one or more Certificate Accounts in which the
Servicer shall deposit or cause to be deposited on a daily basis (and in no
event later than the Business Day following receipt of available funds), except
as otherwise specifically provided herein, the following payments and
collections received (and, following the securitization of the related B Note,
in the case of the Downtown Plaza B Note or the Prospect Plaza B Note, no
payments will be received by the Servicer until an "Event of Default" as defined
in the Downtown Plaza Co-Lender Agreement or the Prospect Plaza Co-Lender
Agreement, as the case may be, occurs) or made by or on behalf of it subsequent
to the Cut-off Date (other than in respect of principal and interest on the
Mortgage Loans due and payable on or before the Cut-off Date, which payments
shall be delivered promptly to the appropriate Mortgage Loan Seller or its
designee and other than any amounts received from Mortgagors which are received
in connection with the purchase of defeasance collateral), or payments (other
than Principal Prepayments) received by it (and, with respect to a Non-Serviced
Mortgage Loan, to the extent received pursuant to the related Co-Lender
Agreement) on or prior to the Cut-off Date but allocable to a period subsequent
thereto:
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(ii) all payments on account of interest on the Mortgage Loans (net
of the Servicing Fees and any Non-Serviced Mortgage Loan Primary Servicing
Fees), including Yield Maintenance Charges and Penalty Charges (subject to
Section 3.11 herein);
(iii) all Insurance Proceeds and Condemnation Proceeds and
Liquidation Proceeds received in respect of any Mortgage Loan or REO
Property, together with any amounts representing recoveries of
Workout-Delayed Reimbursement Amounts or Nonrecoverable Advances in
respect of the related Mortgage Loans;
(iv) any amounts required to be transferred from the applicable REO
Account pursuant to Section 3.16(c);
(v) any amounts required to be deposited by the Servicers pursuant
to Section 3.06 in connection with losses incurred with respect to
Permitted Investments of funds held in the Certificate Account; and
(vi) any amounts required to be deposited by the Servicers or the
Special Servicer pursuant to Section 3.07(b) in connection with losses
resulting from a deductible clause in a blanket hazard or master single
interest policy;
provided that any amounts described above (other than clause (v) above) that
relate to a Serviced Whole Loan or any REO Property related to a Serviced Whole
Loan (other than Liquidation Proceeds derived from the sale of the related
Mortgage Loan (x) to the holder of any related Serviced Companion Loan pursuant
to the related Co-Lender Agreement, (y) as a Defaulted Mortgage Loan pursuant to
Section 3.18 or (z) pursuant to Section 9.01) shall be deposited in the related
Serviced Whole Loan Custodial Account, and, in any such case, shall thereafter
be transferred to the Certificate Account to the extent provided in Section
3.05(e).
The foregoing requirements for deposit in the Certificate Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing and subject to Section 3.11, actual payments from
Mortgagors in the nature of Escrow Payments, charges for beneficiary statements
or demands, assumption fees, modification application fees, defeasance fees,
modification fees, consent fees, waiver fees, earnout fees, extension fees and
similar fees, penalty charges (net of any amount required to offset interest on
Advances and Trust Fund expenses) or amounts collected for Mortgagor checks
returned for insufficient funds need not be deposited by the applicable Servicer
in the Certificate Account. If either Servicer shall deposit in the Certificate
Account any amount not required to be remitted by such Servicer, such Servicer
may at any time withdraw such amount from the Certificate Account, any provision
herein to the contrary notwithstanding. Assumption, extension, consent, waiver
and modification fees actually received from Mortgagors on Specially Serviced
Mortgage Loans shall be promptly delivered to the Special Servicer as additional
servicing compensation, but only to the extent the payment of such fees are in
accordance with the second paragraph of Section 3.11(b) and any other terms
hereof.
Upon receipt of any of the foregoing amounts in clauses (i)-(iii)
above with respect to any Specially Serviced Mortgage Loans which are not REO
Loans, the Special Servicer shall remit within one Business Day such amounts to
the applicable Servicer for deposit into the Certificate Account in accordance
with the second preceding paragraph. Any such amounts received by the Special
Servicer with respect to an REO Property (other than an REO Property related to
a Non-Serviced Whole Loan) shall be deposited by the Special Servicer into the
applicable REO Account and remitted to such 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 without recourse or warranty such check to the order of the
applicable Servicer and shall promptly deliver any such check to such Servicer
by overnight courier.
Funds in the Certificate Account may only be invested in Permitted
Investments in accordance with the provisions of Section 3.06. Each Servicer
shall give notice to the Trustee, the Special Servicer and the Depositor of the
location of their respective Certificate Account as of the Closing Date and of
the new location of the Certificate Account prior to any change thereof.
(b) The Trustee for the benefit of the Certificateholders shall
establish and maintain the Distribution Account (which shall be deemed to
consist of the Lower-Tier Distribution Account and the Upper-Tier Distribution
Account), the Class A-MFL Floating Rate Account, the Class A-JFL Floating Rate
Account, the Excess Liquidation Proceeds Reserve Account (to the extent of the
Trust Fund's interest therein) and the Interest Reserve Account in trust for the
benefit of the Certificateholders. The Trustee is hereby authorized to make
deposits in and withdrawals from the Distribution Account, the Class A-MFL
Floating Rate Account, the Class A-JFL Floating Rate Account, the Excess
Liquidation Proceeds Reserve Account and the Interest Reserve Account in
accordance with the terms of this Agreement. The Servicers shall withdraw from
each Serviced Whole Loan Custodial Account each month on the related P&I Advance
Date any amounts in such Serviced Whole Loan Custodial Account that are
allocable to the related Mortgage Loan pursuant to the related Co-Lender
Agreement and deposit such amounts in the Certificate Account. The Servicers
shall deliver to the Trustee each month by 1:00 pm New York time on the related
P&I Advance Date, for deposit in the Lower-Tier Distribution Account, that
portion of the Available Distribution Amount (calculated without regard to
clause (a)(viii), (c), (d) and (e) of the definition thereof) for the related
Distribution Date then on deposit in the Certificate Account.
The Servicers shall withdraw from each Serviced Whole Loan Custodial
Account and remit to the holders of such Serviced Companion Loans (or their
designees, if any): (i) the scheduled payments of interest and principal that
are allocable to any related Serviced Companion Loan pursuant to the terms of
the related Co-Lender Agreement, on or prior to the Business Day prior to the
Distribution Date (or such other date as set forth in the related Co-Lender
Agreement) or in the case of the ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Pari Passu Loans, on the
Business Day succeeding receipt thereof and (ii) Late Collections that are
allocable to any related Serviced Companion Loan pursuant to the terms of the
related Co-Lender Agreement, on the Business Day succeeding receipt thereof.
The Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Floating Rate Accounts, the Excess Liquidation Proceeds Reserve
Account and the Interest Reserve Account shall be maintained as segregated
accounts separate from other accounts or as sub-accounts of a single
Distribution Account. Funds on deposit in the Lower-Tier Distribution Account,
the Upper-Tier Distribution Account, the Floating Rate Accounts and the Excess
Liquidation Proceeds Reserve Account may be invested pursuant to the provisions
herein. The Interest Reserve Account shall remain uninvested.
In addition to the amounts required to be deposited in the
Lower-Tier Distribution Account pursuant to the third preceding paragraph, the
Servicer shall, as and when required hereunder, deliver to the Trustee for
deposit in the Lower-Tier Distribution Account:
(i) any P&I Advances required to be made by the Servicers in
accordance with Section 4.03;
(ii) any Liquidation Proceeds paid by the Servicers or the
Special Servicer in connection with the purchase of all of the
Mortgage Loans and any REO Properties in the Trust Fund pursuant to
Section 9.01 (exclusive of that portion thereof required to be
deposited in the Certificate Account pursuant to Section 9.01);
(iii) any Yield Maintenance Charges; and
(iv) any other amounts required to be so delivered for deposit
in the Lower-Tier Distribution Account pursuant to any provision of
this Agreement.
If, as of 5:00 p.m., New York City time, on any P&I Advance Date or
on such other date as any amount referred to in the first paragraph of this
Section 3.04(b) and the foregoing clauses (i) through (iv) are required to be
delivered hereunder, the Servicers shall not have delivered to the Trustee for
deposit in the Lower-Tier Distribution Account and the Excess Liquidation
Proceeds Reserve Account the amounts required to be deposited therein pursuant
to the provisions of this Agreement, the Servicers shall pay the Trustee
interest on such late payment at the federal funds rate from the time such
payment was required to be made (without regard to any grace period) until such
late payment is received by the Trustee.
The Trustee shall, upon receipt, deposit in the Lower-Tier
Distribution Account any and all amounts received by the Trustee that are
required by the terms of this Agreement to be deposited therein.
Promptly on each Distribution Date, the Trustee shall be deemed to
withdraw from the Lower-Tier Distribution Account for deposit in the Upper-Tier
Distribution Account an aggregate amount of immediately available funds equal to
the Lower-Tier Distribution Amount and the amount of any Yield Maintenance
Charges for such Distribution Date allocated in payment of the Uncertificated
Lower-Tier Interests as specified in Sections 4.01(b) and 4.01(d), respectively.
Funds on deposit in the Excess Liquidation Proceeds Reserve Account
may only be invested in Permitted Investments in accordance with the provisions
of Section 3.06. As of the Closing Date, the Excess Liquidation Proceeds Reserve
Account, the Interest Reserve Account, the Floating Rate Accounts and the
Distribution Account shall be located at the offices of the Trustee. The Trustee
shall give notice to the Servicers and the Depositor of the location of the
Distribution Account and of the new location of the Distribution Account prior
to any change thereof.
(c) On or before the P&I Advance Date related to the applicable
Distribution Date, the Servicers or Special Servicer, as applicable, shall remit
to the Trustee for deposit as provided in the second succeeding paragraph, an
amount equal to the Excess Liquidation Proceeds received on or prior to the
related Determination Date and any REO Revenues, Insurance Proceeds and
Condemnation Proceeds collected on or prior to the related Determination Date
with respect to any Mortgage Loan (in the case of the Non-Serviced Mortgage
Loans, to the extent received pursuant to the related Co-Lender Agreement and
the related Non-Serviced Mortgage Loan Pooling Agreement and allocable to the
holder of the related Non-Serviced Mortgage Loan pursuant to the related
Co-Lender Agreement) or Serviced Companion Loan which exceed the principal,
interest and all other amounts due under such Mortgage Loan or Serviced
Companion Loan, including reimbursement of all Advances and all Trust Fund
expenses related to such Mortgage Loan or Serviced Companion Loan.
In the case of Excess Liquidation Proceeds, the Trustee shall make
appropriate ledger entries received with respect thereto and shall hold such
proceeds (i) for the benefit of the Class or Classes of Certificateholders and
(ii) for the benefit of any holder of a Serviced Companion Loan entitled
thereto. Any Excess Liquidation Proceeds shall be identified separately from any
other amounts held in the Distribution Account (with amounts attributable to
each Class or Classes and any Serviced Companion Loan also identified
separately).
Upon the disposition of any REO Property in accordance with Section
3.18, the Special Servicer will calculate the Excess Liquidation Proceeds, if
any, realized in connection with such sale and remit such funds to the Trustee
for deposit into the Excess Liquidation Proceeds Reserve Account, other than
Excess Liquidation Proceeds allocable to any Serviced Companion Loan, which
shall be remitted to the holder of any such Serviced Companion Loan.
(d) The Trustee shall establish and maintain one or more accounts
(collectively, the "Interest Reserve Account") to be held in trust for the
benefit of the Certificateholders. Each account that constitutes the Interest
Reserve Account shall be an Eligible Account. On the Distribution Date in
January (except during a leap year) and February of each calendar year,
commencing in 2008, prior to any distributions being made in respect of the
Certificates on such Distribution Date, the Trustee shall, with respect to each
Interest Reserve Loan, withdraw from the Distribution Account and deposit in the
Interest Reserve Account an amount equal to the Withheld Amount, if any, in
respect of such Interest Reserve Loan for such Distribution Date; provided that
no such transfer of monies from the Distribution Account to the Interest Reserve
Account shall be made on the Final Distribution Date. The Trustee shall also
deposit in the Interest Reserve Account any amounts required to be deposited by
the Trustee pursuant to Section 3.06 in connection with losses incurred with
respect to Permitted Investments of funds held in the Interest Reserve Account.
(e) On or before the Closing Date, the Trustee shall establish and
maintain the Class A-MFL Floating Rate Account trust for the benefit of the
Class A-MFL Certificateholders and the Class A-MFL Swap Counterparty, and shall
establish and maintain the Class A-JFL Floating Rate Account trust for the
benefit of the Class A-JFL Certificateholders and the Class A-JFL Swap
Counterparty. The Class A-MFL Floating Rate Account shall (i) at all times be an
Eligible Account and (ii) relate solely to the Class A-MFL Certificates and
amounts payable in respect of the Class A-MFL Swap Contract. The Class A-JFL
Floating Rate Account shall (i) at all times be an Eligible Account and (ii)
relate solely to the Class A-JFL Certificates and amounts payable in respect of
the Class A-JFL Swap Contract.
The Trustee shall deposit into the Class A-MFL Floating Rate Account
all amounts received in respect of distributions on the Class A-MFL Regular
Interest as specified in Section 3.05(g), and shall immediately deposit into the
Class A-MFL Floating Rate Account all amounts received under the Class A-MFL
Swap Contract. The Trustee shall deposit into the Class A-JFL Floating Rate
Account all amounts received in respect of distributions on the Class A-JFL
Regular Interest as specified in Section 3.05(h), and shall immediately deposit
into the Class A-JFL Floating Rate Account all amounts received under the Class
A-JFL Swap Contract.
(f) Each Servicer shall establish and maintain, or cause to be
established and maintained, one or more Serviced Whole Loan Custodial Accounts,
which may be a sub-account of the related Certificate Account, in which each
Servicer shall deposit or cause to be deposited within one Business Day
following receipt of available funds, except as otherwise specifically provided
herein, the following payments and collections received or made by or on behalf
of it on each Serviced Whole Loan subsequent to the Cut-off Date (other than in
respect of principal and interest on such Serviced Whole Loan due and payable on
or before the Cut-off Date, which payments shall be held as provided in the
related Co-Lender Agreement and other than any amounts received from the related
Mortgagor which are received in connection with the purchase of defeasance
collateral), or payments (other than Principal Prepayments) received by it on or
prior to the Cut-off Date but allocable to a period subsequent thereto:
(i) all payments on account of principal, including Principal
Prepayments, on such Serviced Whole Loan;
(ii) all payments on account of interest on such Serviced
Whole Loan (net of the related Servicing Fees), including Yield
Maintenance Charges and Penalty Charges (subject to Section 3.11
herein);
(iii) all Insurance Proceeds and Condemnation Proceeds and
Liquidation Proceeds received in respect of such Serviced Whole Loan
or related REO Property (other than Liquidation Proceeds derived
from the sale of the related Mortgage Loan (x) to the holder of any
related Serviced Companion Loan pursuant to the related Co-Lender
Agreement, (y) as a Defaulted Mortgage Loan pursuant to Section 3.18
or (z) pursuant Section 9.01);
(iv) any amounts required to be transferred from the related
REO Account pursuant to Section 3.16(c);
(v) any amounts required to be deposited by the Servicers
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; and
(vi) any amounts required to be deposited by the Servicers or
the Special Servicer pursuant to Section 3.07(b) in connection with
losses with respect to such Whole Loan resulting from a deductible
clause in a blanket hazard or master single interest policy.
The foregoing requirements for deposit in the Serviced Whole Loan
Custodial Account shall be exclusive, it being understood and agreed that,
without limiting the generality of the foregoing, actual payments from
Mortgagors in the nature of Escrow Payments, charges for beneficiary statements
or demands, assumption fees, modification application fees, charges for
defeasance fees, modification fees, consent fees, waiver fees, earnout fees,
extension fees and similar fees, penalty charges (net of any amount required to
offset interest on Advances and Trust Fund expenses) or amounts collected for
Mortgagor checks returned for insufficient funds need not be deposited by the
Servicers in the applicable Serviced Whole Loan Custodial Account. If either
Servicer shall deposit in the 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. Assumption, extension, consent, waiver and
modification fees actually received from Mortgagors on Specially Serviced
Mortgage Loans shall be promptly delivered to the Special Servicer as additional
servicing compensation, but only to the extent the payment of such fees are in
accordance with the second paragraph of Section 3.11(b) and any other terms
hereof. The Serviced Whole Loan Custodial Account shall be an Eligible Account
and shall be maintained as a segregated account, separate and apart from trust
funds created for mortgage-backed securities of other series and the other
accounts of the Servicers; provided, however, that the Serviced Whole Loan
Custodial Account may be a sub-account of the applicable Certificate Account.
Upon receipt of any of the foregoing amounts in clauses (i)-(iii)
above with respect to each Serviced Whole Loan, when it is a Specially Serviced
Mortgage Loan and not a REO Loan, the Special Servicer shall remit within one
Business Day such amounts to the applicable Servicer for deposit into the
applicable Serviced Whole Loan Custodial Account in accordance with the second
preceding paragraph. Any such amounts received by the Special Servicer with
respect to a related REO Property shall initially be deposited by the Special
Servicer into the related REO Account and remitted to the applicable Servicer
for deposit into the applicable 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 without recourse or
warranty such check to the order of the applicable Servicer and shall promptly
deliver any such check to such Servicer by overnight courier.
Funds in the Serviced Whole Loan Custodial Account may only be
invested in Permitted Investments in accordance with the provisions of Section
3.06. The Servicer shall give notice to the Trustee, the Special Servicer and
the Depositor of the location of the Serviced Whole Loan Custodial Account as of
the Closing Date and of the new location of the Serviced Whole Loan Custodial
Account prior to any change thereof.
Section 3.05 Permitted Withdrawals from the Certificate Account; the
Distribution Account and the Serviced Whole Loan Custodial Accounts.
(a) Each Servicer may, from time to time, make withdrawals from the
applicable Certificate Account for any of the following purposes (the order set
forth below shall not indicate any order of priority):
(i) to remit to the Trustee for deposit in the Lower-Tier
Distribution Account and the Excess Liquidation Proceeds Reserve Account
the amounts required to be remitted pursuant to Section 3.04(b) and
Section 3.04(c), as applicable, or, for deposit in the Lower-Tier
Distribution Account, that may be applied to make P&I Advances pursuant to
Section 4.03(a);
(ii) to pay (A) itself unpaid Servicing Fees in respect of each
Mortgage Loan and REO Loan (exclusive of each Mortgage Loan (including,
for the avoidance of doubt, each Specially Serviced Mortgage Loan) or REO
Loan included in a Serviced Whole Loan), as applicable, the Servicer's
rights to payment of Servicing Fees pursuant to this clause (ii)(A) with
respect to any Mortgage Loan or REO Loan (exclusive of each Mortgage Loan
or REO Loan included in a Serviced Whole Loan), as applicable, being
limited to amounts received (and deposited in the Certificate Account) on
or in respect of such Mortgage Loan (whether in the form of payments,
Liquidation Proceeds, Insurance Proceeds or Condemnation Proceeds), or
such REO Loan (whether in the form of REO Revenues, Liquidation Proceeds,
Insurance Proceeds or Condemnation Proceeds), that are allocable as
recovery of interest thereon, (B) each month to the Special Servicer any
unpaid Special Servicing Fees, Liquidation Fees and Workout Fees in
respect of each Specially Serviced Mortgage Loan, Corrected Mortgage Loan,
or REO Loan (exclusive of any such fees payable with respect to any
Serviced Companion Loan or Serviced Companion Loan included in an REO
Loan), as applicable, remaining unpaid, first, out of related collections,
REO Revenues, Liquidation Proceeds and Insurance and Condemnation
Proceeds, if any, and then, out of general collections on the Mortgage
Loans and REO Properties (but in the case of any Mortgage Loan included in
a Serviced Whole Loan, only to the extent that amounts on deposit in the
related Serviced Whole Loan Custodial Account are insufficient therefor)
and (C) each month to any Non-Serviced Mortgage Loan Special Servicer the
pro rata portion (based on such Mortgage Loan's Stated Principal Balance)
of any unpaid special servicing fees, liquidation fees and workout fees in
respect of the related Non-Serviced Whole Loan remaining unpaid, out of
general collections on deposit in the Certificate Account in respect of
the Mortgage Loans, Specially Serviced Mortgage Loans and REO Properties;
(iii) to reimburse itself or the Trustee, as applicable (in reverse
of such order with respect to any Mortgage Loan), for ▇▇▇▇▇▇▇▇▇▇▇▇ ▇&▇
Advances (other than Nonrecoverable Advances which are reimbursable
pursuant to clause (v) below, and exclusive of each Mortgage Loan or REO
Loan included in a Serviced Whole Loan), the Servicer's or the Trustee's
right to reimbursement pursuant to this clause (iii) being limited to
amounts received and deposited into the Certificate Account which
represent Late Collections for the applicable Mortgage Loan (exclusive of
each Mortgage Loan or REO Loan included in a Serviced Whole Loan) during
the applicable period; provided, however, that if such P&I Advance becomes
a Workout-Delayed Reimbursement Amount, then such P&I Advance shall
thereafter be reimbursed from the portion of general collections and
recoveries on or in respect of all of the Mortgage Loans and REO
Properties on deposit in the Certificate Account from time to time that
represent collections or recoveries of principal to the extent provided in
clause (v) below (to be allocated between the Loan Groups as set forth in
the last paragraph of this Section 3.05(a));
(iv) to reimburse itself, the Special Servicer or the Trustee, as
applicable (in reverse of such order) with respect to any Mortgage Loan or
REO Property (which, in either case, is not a part of a Serviced Whole
Loan), for unreimbursed Servicing Advances (other than the Nonrecoverable
Advances, which are reimbursable pursuant to clause (v) below), the
Servicer's, the Special Servicer's or the Trustee's respective rights to
receive payment pursuant to this clause (iv) with respect to any Mortgage
Loan or REO Property (exclusive of each Mortgage Loan or REO Loan included
in a Serviced Whole Loan or any REO Property securing such Serviced Whole
Loan) being limited to, as applicable, related payments, Liquidation
Proceeds, Insurance Proceeds and Condemnation Proceeds and REO Revenues
with respect to the related Mortgage Loan or REO Property; provided,
however, that if such Servicing Advance becomes a Workout-Delayed
Reimbursement Amount, then such Servicing Advance shall thereafter be
reimbursed from the portion of general collections and recoveries on or in
respect of the Mortgage Loans and REO Properties on deposit in the
Certificate Account from time to time that represent collections or
recoveries of principal to the extent provided in clause (v) below (to be
allocated between the Loan Groups as set forth in the last paragraph of
this Section 3.05(a)).
(v) (A) to reimburse itself, the Special Servicer or the Trustee, as
applicable (in reverse of such order with respect to any Mortgage Loan or
REO Property), (1) for Nonrecoverable Advances (and interest thereon), out
of the principal portion of general collections on the Mortgage Loans and
REO Properties and then, to the extent the principal portion of general
collections is insufficient and with respect to such excess only, subject
to any exercise of the sole option to defer reimbursement thereof pursuant
to this Section 3.05(a), out of other collections on the Mortgage Loans
and REO Properties (in each case, to be allocated between the Loan Groups
as set forth in the last paragraph to this Section 3.05(a)) (but, in the
case of Serviced Whole Loan, only to the extent that amounts on deposit in
the related Serviced Whole Loan Custodial Account are insufficient
therefor) and (2) for any Workout-Delayed Reimbursement Amounts, such
reimbursement to be made out of the principal portion of the general
collections on the Mortgage Loans and REO Properties (to be allocated
between the Loan Groups as set forth in the last paragraph of this Section
3.05(a)), net of such amounts being reimbursed pursuant to (1) above, (B)
to pay itself out of general collections on the Mortgage Loans and REO
Properties, with respect to any Mortgage Loan or REO Property any related
earned Servicing Fee that remained unpaid in accordance with clause (ii)
above following a Final Recovery Determination made with respect to such
Mortgage Loan or REO Property and the deposit into the Certificate Account
of all amounts received in connection therewith (but, in the case of a
Serviced Whole Loan, only to the extent that amounts on deposit in the
related Serviced Whole Loan Custodial Account are insufficient therefor)
and (C) to reimburse any Non-Serviced Mortgage Loan Servicer, Non-Serviced
Mortgage Loan Special Servicer and Non-Serviced Mortgage Loan Trustee, as
applicable, out of the principal portion and the non-principal portion of
general collections on the Mortgage Loans and REO Properties for the pro
rata portion (based on such Mortgage Loan's Stated Principal Balance) of
nonrecoverable servicing advances previously made with respect to the
related Non-Serviced Whole Loan; provided that such reimbursement shall be
made as if it were for a Nonrecoverable Servicing Advance made pursuant to
this Agreement;
(vi) (A) at such time as it reimburses itself, the Special Servicer
or the Trustee, as applicable (in reverse of such order with respect to
any Mortgage Loan or REO Property), for (1) any ▇▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advance
(including any such P&I Advance that constitutes a Workout-Delayed
Reimbursement Amount) pursuant to clause (iii) above, to pay itself or the
Trustee, as applicable, any interest accrued and payable thereon in
accordance with Sections 4.03(d) and 3.11(c) (each Servicer's or Trustee's
respective rights to payments pursuant to this subclause (1) with respect
to interest on such advances being limited to amounts on deposit in the
Certificate Account that represent Penalty Charges collected on or in
respect of the applicable Mortgage Loan after the previous Determination
Date and on or prior to the related Determination Date), (2) any
unreimbursed Servicing Advances (including any such Servicing Advance that
constitutes a Workout-Delayed Reimbursement Amount) made with respect to a
Mortgage Loan or REO Property pursuant to clause (iv) above, to pay
itself, the Special Servicer or the Trustee, as the case may be, any
interest accrued and payable thereon in accordance with Sections 3.03(e)
and 3.11(c) (each Servicer's, Special Servicer's or Trustee's respective
rights to payments pursuant to this subclause (2) with respect to interest
on such advances being limited to amounts on deposit in the Certificate
Account that represent Penalty Changes collected on or in respect of the
applicable Mortgage Loan after the previous Determination Date and on or
prior to the related Determination Date) or (3) any Nonrecoverable P&I
Advances made with respect to a Mortgage Loan or REO Property and any
Nonrecoverable Servicing Advances made with respect to a Mortgage Loan or
REO Property pursuant to clause (v) above, to pay itself, the Special
Servicer or the Trustee, as the case may be, any interest accrued and
payable thereon, out of general collections on the Mortgage Loans and the
REO Properties but in the case of a Mortgage Loan included in a Serviced
Whole Loan, only to the extent that such Nonrecoverable Advance has been
reimbursed and only to the extent that amounts on deposit in the
applicable Serviced Whole Loan Custodial Account are insufficient therefor
and pursuant to the allocation set forth in the related Co-Lender
Agreement and (B) at such time as it reimburses any Non-Serviced Mortgage
Loan Servicer, Non-Serviced Mortgage Loan Special Servicer or Non-Serviced
Mortgage Loan Trustee, as applicable, for any nonrecoverable servicing
advances made with respect to the related Non-Serviced Whole Loan or the
related REO Property pursuant to clause (v) above, to pay such
Non-Serviced Mortgage Loan Servicer, Non-Serviced Mortgage Loan Special
Servicer or Non-Serviced Mortgage Loan Trustee, as the case may be, any
interest accrued and payable thereon out of general collections on the
Mortgage Loans and the REO Properties;
(vii) to reimburse itself, the Special Servicer or the Trustee, as
the case may be, for any unreimbursed expenses reasonably incurred by such
Person in respect of any Breach or Defect giving rise to a repurchase
obligation of the applicable Mortgage Loan Seller under Section 6 of the
applicable Mortgage Loan Purchase Agreement, including, without
limitation, any expenses arising out of the enforcement of the repurchase
obligation, each such Person's right to reimbursement pursuant to this
clause (vii) with respect to any Mortgage Loan being limited to that
portion of the Purchase Price paid for such Mortgage Loan that represents
such expense in accordance with clause (v) of the definition of Purchase
Price;
(viii) in accordance with Section 2.03(e), to reimburse itself, the
Special Servicer or the Trustee, as the case may be, out of general
collections on the Mortgage Loans and REO Properties for any unreimbursed
expense reasonably incurred by such Person in connection with the
enforcement of the applicable Mortgage Loan Seller's obligations under
Section 3 of the applicable Mortgage Loan Purchase Agreement, but only to
the extent that such expenses are not reimbursable pursuant to clause
(vii) above or otherwise, but in the case of a Serviced Whole Loan, only
to the extent that amounts on deposit in the applicable Serviced Whole
Loan Custodial Account are insufficient therefor;
(ix) to pay itself all Prepayment Interest Excesses on the Mortgage
Pool (exclusive of each Mortgage Loan or REO Loan included in a Whole
Loan) not required to be used pursuant to Section 3.19;
(x) (A) to pay itself, as additional servicing compensation in
accordance with Section 3.11(a), (1) interest and investment income earned
in respect of amounts relating to the Trust Fund held in the Certificate
Account as provided in Section 3.06(b) (but only to the extent of the Net
Investment Earnings with respect to the Certificate Account for any period
from any Distribution Date to the immediately succeeding P&I Advance Date)
and (2) Penalty Charges on Mortgage Loans (other than Specially Serviced
Mortgage Loans) (exclusive of each Mortgage Loan or REO Loan included in a
Whole Loan), (but only to the extent collected from the related Mortgagor
and to the extent that all amounts then due and payable with respect to
the related Mortgage Loan have been paid and are not needed to pay
interest on Advances with respect to such Mortgage Loan that have accrued
since the prior Determination Date, in accordance with Section 3.11) (in
each case subject to the applicable Co-Lender Agreement); and (B) to pay
the Special Servicer, as additional servicing compensation in accordance
with the second paragraph of Section 3.11(b), Penalty Charges on Specially
Serviced Mortgage Loans (exclusive of each Mortgage Loan or REO Loan
included in a Whole Loan) (but only to the extent collected from the
related Mortgagor and to the extent that all amounts then due and payable
with respect to the related Specially Serviced Mortgage Loan have been
paid and are not needed to pay interest on Advances that has accrued since
the prior Determination Date, all in accordance with Section 3.11) (in
each case subject to the applicable Co-Lender Agreement);
(xi) to recoup any amounts deposited in the Certificate Account in
error;
(xii) to pay itself, the Special Servicer, the Depositor or any of
their respective affiliates, shareholders, directors, officers, members,
managers, employees and agents, as the case may be, any amounts payable to
any such Person pursuant to Sections 6.03(a) or 6.03(b) (solely with
respect to amounts payable pursuant to Section 6.03(b), exclusive of
amounts relating solely to a Serviced Companion Loan or related REO Loan);
(xiii) to pay for (A) the cost of the Opinions of Counsel
contemplated by Sections 3.16(a) and 10.01(f) to the extent payable out of
the Trust Fund, (B) the cost of any Opinion of Counsel contemplated by
Sections 12.01(a) or 12.01(c) in connection with an amendment to this
Agreement requested by the Trustee, the Servicers or the Special Servicer,
which amendment is in furtherance of the rights and interests of
Certificateholders and (C) the cost of obtaining the REO Extension
contemplated by Section 3.16(a);
(xiv) to pay out of general collections on the Mortgage Loans and
the Trust's interest in REO Properties any and all federal, state and
local taxes imposed on the Upper-Tier REMIC, the Lower-Tier REMIC or any
of their assets or transactions, together with all incidental costs and
expenses, to the extent that none of the Servicers, the Special Servicer
or the Trustee is liable therefor pursuant to Section 10.01(g), except to
the extent such amounts relate solely to a Serviced Whole Loan, in which
case, such amounts will be reimbursed first from the related Serviced
Whole Loan Custodial Account in accordance with Section 3.05(e) and then
out of general collections on the Mortgage Loans;
(xv) to reimburse the Trustee out of general collections on the
Mortgage Loans and REO Properties for expenses incurred by and
reimbursable to it by the Trust Fund (including pursuant to Section
10.01(c)), except to the extent such amounts relate solely to a Serviced
Whole Loan, in which case, such amounts will be reimbursed first, from the
related Serviced Whole Loan Custodial Account in accordance with Section
3.05(e) and then, to the extent not attributable solely to the Serviced
Companion Loan included in such Serviced Whole Loan, out of general
collections on the Mortgage Loans;
(xvi) to pay the Special Servicer or any other Person permitted to
purchase a Mortgage Loan under Section 3.18 or the Mortgage Loan Sellers
that purchased a Mortgage Loan under Section 2.03, as the case may be,
with respect to each Mortgage Loan (exclusive of the Mortgage Loan
included in a Serviced Whole Loan), if any, previously purchased by such
Person pursuant to this Agreement, all amounts received thereon subsequent
to the date of purchase relating to periods after the date of purchase;
(xvii) to remit to the Trustee for deposit in the Interest Reserve
Account the amounts required to be deposited in the Interest Reserve
Account pursuant to Section 3.25;
(xviii) to clear and terminate the Certificate Account at the
termination of this Agreement pursuant to Section 9.01;
(xix) (A) to pay to the Servicers, the Special Servicer, the Trustee
or the Depositor, as the case may be, any amount specifically required to
be paid to such Person at the expense of the Trust Fund under any
provision of this Agreement to which reference is not made in any other
clause of this Section 3.05(a), it being acknowledged that this clause
(xix) shall not be construed to modify any limitation or requirement
otherwise set forth in this Agreement as to the time at which any Person
is entitled to payment or reimbursement of any amount or as to 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 Mortgage Loan Servicer, Non-Serviced Mortgage Loan
Special Servicer or Non-Serviced Mortgage 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 Mortgage Loan Pooling and Servicing
Agreement) that relate exclusively to the servicing of such Non-Serviced
Whole Loan out of general collections on the Mortgage Loans and the REO
Properties; and
(xx) to the extent that it has reimbursed or is reimbursing itself,
the Special Servicer or the Trustee, as applicable, for any unreimbursed
Advance pursuant to clause (iii) or (iv), and insofar as the Penalty
Charges collected on the related Mortgage Loan after the previous
Determination Date and on or prior to the related Determination Date and
then on deposit in the Certificate Account are not sufficient to make the
payment of interest on such advances pursuant to clause (vi) above, to pay
the Servicers, the Special Servicer or the Trustee, as the case may be,
(in reverse of such order with respect to any Mortgage Loan or REO
Property) out of general collections on the Mortgage Loans and any REO
Properties, any related interest accrued and payable on the portion of
such Advance so reimbursed or being reimbursed.
Each Servicer shall keep and maintain separate accounting records,
on a loan-by-loan basis when appropriate, for the purpose of justifying any
withdrawal from the applicable Certificate Account.
Each Servicer shall pay to the Special Servicer (or to third party
contractors at the direction of the Special Servicer) from the applicable
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 any such third party contractor) is entitled. Each Servicer
may rely conclusively on any such certificate and shall have no duty to
re-calculate the amounts stated therein. The Special Servicer shall keep and
maintain separate accounting for each Specially Serviced Mortgage Loan and REO
Loan, on a loan-by-loan and property-by-property basis, for the purpose of
justifying any request for withdrawal from the applicable Certificate Account.
In addition, the applicable Servicer shall pay to the Non-Serviced
Mortgage Loan Servicer, the Non-Serviced Mortgage Loan Special Servicer or the
Non-Serviced Mortgage Loan Trustee (or to third party contractors at the
direction of the Non-Serviced Mortgage Loan Servicer, the Non-Serviced Mortgage
Loan Special Servicer or the Non-Serviced Mortgage Loan Trustee) 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 Non-Serviced Mortgage Loan Servicer, the Non-Serviced Mortgage
Loan Special Servicer or the Non-Serviced Mortgage Loan Trustee describing the
item and amount to which the Non-Serviced Mortgage Loan Servicer, the
Non-Serviced Mortgage Loan Special Servicer or the Non-Serviced Mortgage Loan
Trustee (or any such third party contractor) is entitled. The Servicers may rely
conclusively on any such certificate and shall have no duty to re-calculate the
amounts stated therein.
Upon the determination that a previously made Advance is a
Nonrecoverable Advance, instead of obtaining reimbursement out of general
collections immediately, the Servicers, the Special Servicer or the Trustee, as
applicable, may, in its sole discretion, elect to obtain reimbursement for such
Nonrecoverable Advance over time (not to exceed 12 months or such longer period
of time as agreed to by the Servicers, the Special Servicer or the Trustee, as
applicable, and the Directing Certificateholder, each in its sole discretion)
and the unreimbursed portion of such Advance will accrue interest at the
Reimbursement Rate. At any time after such a determination to obtain
reimbursement over time, the Servicers, 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 Servicers or the
Special Servicer, constitute a violation of the Servicing Standard or
contractual duty hereunder and/or with respect to the Trustee, constitute a
violation of any fiduciary duty to Certificateholders or contractual duty
hereunder.
To the extent a Nonrecoverable Advance or 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 clauses (iii), (iv) or (v) 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 and Workout-Delayed Reimbursement Amounts related to such other Loan
Group). To the extent a Nonrecoverable Advance with respect to a Mortgage Loan
is required to be reimbursed from the interest portion of the general
collections on the Mortgage Loans pursuant to clauses (iii), (iv) or (v) of this
Section 3.05(a), such reimbursement shall be made first, from the interest
collections available on the Mortgage Loans included in the same Loan Group as
such Mortgage Loan and if the interest collections in such Loan Group are not
sufficient to make such reimbursement in full, then from the interest
collections available in the other Loan Group (after giving effect to any
reimbursement of Nonrecoverable Advances related to such other Loan Group);
provided, however, that this provision shall not result in any change in the
interest distributions in the manner required under Section 4.01(a)(i) of this
Agreement.
In addition, but subject to the preceding provisions of this Section
3.05(a), if at any time a Servicer is entitled to make a payment, reimbursement
or remittance from its Certificate Account, and the payment, reimbursement or
remittance can be made from funds on deposit in such Certificate Account without
any requirement that they be paid, reimbursed or remitted from funds that relate
to a particular Mortgage Loan and the amounts on deposit in such Servicer's
Certificate Account that are available to make such payment, reimbursement or
remittance are insufficient and the amounts on deposit in the other Servicer's
Certificate Account are sufficient to make up any shortfall in the requesting
Servicer's Certificate Account, then such other Servicer shall withdraw such
funds from its Certificate Account and make such payment, reimbursement or
remittance within three (3) Business Days following a written request therefor
from the requesting Servicer, which request shall be accompanied by an Officer's
Certificate (1) either (x) stating that the requesting Servicer, the Special
Servicer, the Trustee or another particular Person, as applicable, is entitled
to such payment, reimbursement or remittance (and setting forth the nature and
amount of such payment, reimbursement or remittance and the party entitled
thereto) or (y) forwarding a copy of any Officer's Certificate or other
information provided by the Special Servicer, the Trustee or any comparable
certification from another particular Person, as the case may be, that states
that such Person is entitled to such payment, reimbursement or remittance (and
the nature and amount of such payment, reimbursement or remittance and the party
entitled thereto) and (2) stating that the requesting Servicer does not then
have on deposit in its Certificate Account funds sufficient for such payment,
reimbursement or remittance; provided, however, that prior to determining
whether there are sufficient funds available to make, and prior to making such
requested payment, reimbursement or remittance to the requesting Servicer, such
other Servicer shall be entitled to apply the amounts on deposit in its
Certificate Account to make any payment, remittance or reimbursement permitted
to be made by such other Servicer pursuant to clauses (ii)-(xx) above. Each
Servicer may conclusively rely on the request of the other Servicer and
Officer's Certificate in making the payment described in this paragraph.
(b) The Trustee, may, from time to time, make withdrawals from the
Lower-Tier Distribution Account for any of the following purposes (the order set
forth below shall not indicate any order of priority):
(i) to make deposits of the Lower-Tier Distribution Amount pursuant
to Section 4.01(b) and the amount of any Yield Maintenance Charges
distributable pursuant to Section 4.01(e) in the Upper-Tier Distribution
Account, and to make distributions on the Class LR Certificates pursuant
to Section 4.01(b);
(ii) to pay to itself accrued but unpaid Trustee Fees;
(iii) to pay to itself or any of its directors, officers, employees
and agents, as the case may be, any amounts payable or reimbursable to any
such Person pursuant to Sections 8.05(b) and 8.05(c);
(iv) to recoup any amounts deposited in the Lower-Tier Distribution
Account in error; and
(v) to clear and terminate the Lower-Tier Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
(c) The Trustee, may make withdrawals from the Upper-Tier
Distribution Account for any of the following purposes:
(i) to make distributions to Certificateholders (other than Holders
of the Class A-MFL, Class A-JFL and Class LR Certificates) on each
Distribution Date pursuant to Section 4.01 or 9.01, as applicable, to make
distributions to the Class A-MFL Floating Rate Account with respect to the
Class A-MFL Regular Interest and to make distributions to the Class A-JFL
Floating Rate Account with respect to the Class A-JFL Regular Interest
pursuant to this Agreement;
(ii) to recoup any amounts deposited in the Upper-Tier Distribution
Account in error; and
(iii) to clear and terminate the Upper-Tier Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
(d) Notwithstanding anything herein to the contrary, with respect to
any Mortgage Loan, (i) if amounts on deposit in the Certificate Account and the
Lower-Tier Distribution Account are not sufficient to pay the full amount of the
Servicing Fee listed in Section 3.05(a)(ii) and the Trustee Fees listed in
Section 3.05(b)(ii), then the Trustee Fee shall be paid in full prior to the
payment of any Servicing Fees payable under Section 3.05(a)(ii) and (ii) if
amounts on deposit in the Certificate Account are not sufficient to reimburse
the full amount of Advances and interest thereon listed in Sections
3.05(a)(iii), (iv), (v) and (vi), then reimbursements shall be paid first to the
Trustee, second to the Special Servicer and third to the Servicers.
(e) Each Servicer may (and, with respect to clause (i), shall), from
time to time, make withdrawals from the applicable 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) (A) to transfer to the applicable Certificate Account any
amounts in the Serviced Whole Loan Custodial Account allocable to the
related Mortgage Loan pursuant to the terms of the related Co-Lender
Agreement and (B) to remit to the holder of each Serviced Companion Loan,
any amounts in the Serviced Whole Loan Custodial Account allocable to such
Serviced Companion Loan pursuant to the terms of the related Co-Lender
Agreement, in each case pursuant to Section 3.04(b) and 3.04(c) (provided
that Liquidation Proceeds or Excess Liquidation Proceeds relating to the
purchase or repurchase of any Serviced Companion Loan shall be remitted
solely to the holder of such Serviced Companion Loan, and Liquidation
Proceeds relating to the repurchase of a Mortgage Loan related to a
Serviced Whole Loan by the related Mortgage Loan Seller shall be remitted
solely to the Certificate Account); provided, however, that any
Liquidation Proceeds related to a sale pursuant to Section 3.18 hereof or
pursuant to the related Co-Lender Agreement of a Mortgage Loan included in
a Serviced Whole Loan shall be deposited directly into the Certificate
Account;
(ii) (A) to pay itself unpaid Servicing Fees in respect of such
Serviced Whole Loan and related REO Loan, as applicable, the Servicer's
rights to payment of Servicing Fees pursuant to this clause (ii) with
respect to such Serviced Whole Loan or related REO Loan, as applicable,
being limited to amounts received (and deposited into the Serviced Whole
Loan Custodial Account) on or in respect of such Serviced Whole Loan
(whether in the form of payments, Liquidation Proceeds, Insurance Proceeds
or Condemnation Proceeds), or such REO Loan (whether in the form of REO
Revenues, Liquidation Proceeds, Insurance Proceeds or Condemnation
Proceeds), that are allocable as recovery of interest thereon and (B) in
the event that the related Serviced Whole Loan is a Specially Serviced
Mortgage Loan, Corrected Mortgage Loan or REO Loan to pay the Special
Servicer any unpaid Special Servicing Fees, Liquidation Fees and Workout
Fees in respect of the Serviced Whole Loan remaining unpaid out of related
collections, REO Revenues, Liquidation Proceeds and Insurance and
Condemnation Proceeds, if any;
(iii) to reimburse itself or the Trustee, as applicable (in reverse
of such order with respect to the related Mortgage Loan) for ▇▇▇▇▇▇▇▇▇▇▇▇
▇&▇ Advances with respect to the related Mortgage Loan (the Servicer's or
the Trustee's right to reimbursement pursuant to this clause (iii) being
limited to amounts received in such Serviced Whole Loan Custodial Account
which represent Late Collections received in respect of related Mortgage
Loan (as allocable thereto pursuant to the related Co-Lender Agreement)
during the applicable period);
(iv) to reimburse itself, the Trustee or the Special Servicer, as
applicable (in reverse of such order with respect to such Serviced Whole
Loan or REO Property), for unreimbursed Servicing Advances with respect to
such Serviced Whole Loan or related REO Property, the Servicer's, the
Trustee's or the Special Servicer's respective rights to receive payment
pursuant to this clause (iv) being limited to, as applicable, related
payments, Liquidation Proceeds, Insurance Proceeds and Condemnation
Proceeds and REO Revenues on deposit in the Serviced Whole Loan Custodial
Account with respect to such Serviced Whole Loan;
(v) Reserved;
(vi) at such time as it reimburses itself, the Special Servicer or
the Trustee, as applicable (in reverse of such order with respect to such
Serviced Whole Loan or related REO Property), for (A) any ▇▇▇▇▇▇▇▇▇▇▇▇ ▇&▇
Advance with respect to such Serviced Whole Loan pursuant to clause (iii)
above, to pay itself or the Trustee, as applicable, any interest accrued
and payable thereon in accordance with Sections 4.03(d) and 3.11(c) (the
Servicer's or Trustee's respective rights to payments pursuant to this
subclause (A) with respect to interest on such advances being limited to
amounts on deposit in the Serviced Whole Loan Custodial Account that
represent Penalty Charges collected on or in respect of such Mortgage Loan
on or prior to the related Determination Date) or (B) any unreimbursed
Servicing Advances pursuant to clause (iv) above, to pay itself, the
Special Servicer or the Trustee, as the case may be, any interest accrued
and payable thereon in accordance with Sections 3.03(e) and 3.11(c) (the
Servicer's, Special Servicer's or Trustee's respective rights to payments
pursuant to this subclause (B) with respect to interest on such advances
being limited to amounts on deposit in the Serviced Whole Loan Custodial
Account that represents Penalty Charges collected on or in respect of the
applicable Serviced Whole Loan after the previous Determination Date and
on or prior to the related Determination Date);
(vii) to reimburse itself, the Special Servicer or the Trustee, as
the case may be, for any unreimbursed expenses reasonably incurred by such
Person in respect of any Breach or Defect with respect to the Mortgage
Loan included in such Serviced Whole Loan giving rise to a repurchase
obligation of the applicable Mortgage Loan Seller under Section 3 of the
applicable Mortgage Loan Purchase Agreement, including, without
limitation, any expenses arising out of the enforcement of the repurchase
obligation, each such Person's right to reimbursement pursuant to this
clause (vii) with respect to such Serviced Whole Loan being limited to
that portion of the Purchase Price paid for the related Mortgage Loan that
represents such expense in accordance with clause (v) of the definition of
Purchase Price;
(viii) in accordance with Section 2.03(e), to reimburse itself, the
Special Servicer or the Trustee, as the case may be, out of general
collections on such Serviced Whole Loan and related REO Properties for any
unreimbursed expense reasonably incurred by such Person in connection with
the enforcement of the applicable Mortgage Loan Seller's obligations under
Section 3 of the applicable Mortgage Loan Purchase Agreement with respect
to the Mortgage Loan included in such Serviced Whole Loan, but only to the
extent that such expenses are not reimbursable pursuant to clause (vii)
above or otherwise;
(ix) to pay itself all Prepayment Interest Excesses on the related
Mortgage Loan not required to be used pursuant to Section 3.19;
(x) (A) to pay itself, as additional servicing compensation in
accordance with Section 3.11(a), (1) interest and investment income earned
in respect of amounts relating to such Serviced Whole Loan held in such
Serviced Whole Loan Custodial Account as provided in Section 3.06(b) (but
only to the extent of the Net Investment Earnings with respect to such
Serviced Whole Loan Custodial Account for any period from any Distribution
Date to the immediately succeeding P&I Advance Date) and (2) subject to
the applicable Co-Lender Agreement, Penalty Charges on such Serviced Whole
Loan (other than Specially Serviced Mortgage Loans), but only to the
extent collected from the related Mortgagor and to the extent that all
amounts then due and payable with respect to the related Serviced Whole
Loan have been paid and are not needed to pay interest on Advances in
accordance with Section 3.11 or advances of principal and interest made
with respect to a Serviced Companion Loan by a party to a related Other
Securitization that holds such Serviced Companion Loan; and (B) to pay the
Special Servicer, as additional servicing compensation in accordance with
the second paragraph of Section 3.11 (in each case, subject to the
applicable Co-Lender Agreement), Penalty Charges on such Serviced Whole
Loan during the period it is a Specially Serviced Mortgage Loan (but only
to the extent collected from the related Mortgagor and to the extent that
all amounts then due and payable with respect to the related Specially
Serviced Mortgage Loan have been paid and are not needed to pay interest
on Advances, all in accordance with Section 3.11 or advances of principal
and interest made with respect to a Serviced Companion Loan by a party to
a related Other Securitization) (in each case, subject to the applicable
Co-Lender Agreement);
(xi) to recoup any amounts deposited in such Serviced Whole Loan
Custodial Account in error;
(xii) to pay itself, the Special Servicer, the Depositor or any of
their respective affiliates, shareholders, directors, officers, members,
managers, employees and agents, as the case may be, any amounts payable to
any such Person pursuant to Sections 6.03(a) or 6.03(b), to the extent
that such amounts relate to such Serviced Whole Loan;
(xiii) to pay for (A) the cost of the Opinions of Counsel
contemplated by Sections 3.16(a) and 10.01(f) to the extent payable out of
the Trust Fund as they relate to the Serviced Whole Loan, (B) the cost of
any Opinion of Counsel contemplated by Sections 12.01(a) or 12.01(c) in
connection with an amendment to this Agreement requested by the Trustee, a
Servicer or the Special Servicer, which amendment is in furtherance of the
rights and interests of Certificateholders and (C) the cost of obtaining
the REO Extension contemplated by Section 3.16(a), to the extent that such
amounts relate to such Serviced Whole Loan;
(xiv) to pay out of general collections on such Mortgage Loan and
related REO Properties any and all federal, state and local taxes imposed
on the Upper-Tier REMIC and the Lower-Tier REMIC or any of their assets or
transactions, together with all incidental costs and expenses, in each
case to the extent that none of the Servicers, the Special Servicer or the
Trustee is liable therefor pursuant to Section 10.01(g) and to the extent
that such amounts relate to the Mortgage Loan included in such Serviced
Whole Loan that is included in either such REMIC;
(xv) to reimburse the Trustee out of collections on such Serviced
Whole Loan and REO Properties for expenses incurred by and reimbursable to
it by the Trust Fund in accordance with this Agreement (including pursuant
to Section 10.01(c));
(xvi) to pay itself, the Special Servicer or the applicable Mortgage
Loan Seller, as the case may be, with respect to the Mortgage Loan
included in such Serviced Whole Loan, if any, previously purchased by such
Person pursuant to this Agreement, all amounts received thereon subsequent
to the date of purchase relating to periods after the date of purchase;
(xvii) to remit to the Trustee for deposit in the Interest Reserve
Account the amounts with respect to the Mortgage Loan or Mortgage Loans
included in such Serviced Whole Loan required to be deposited in the
Interest Reserve Account pursuant to Section 3.25;
(xviii) to pay itself, the Special Servicer, the Trustee or the
Depositor, as the case may be, to the extent that such amounts relate 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(e);
(xix) to clear and terminate such Serviced Whole Loan Custodial
Account at the termination of this Agreement pursuant to Section 9.01; and
(xx) to the extent that it has reimbursed or is reimbursing itself,
the Special Servicer or the Trustee, as applicable, for any unreimbursed
Advance pursuant to clause (iii) or (iv) above, and insofar as the Penalty
Charges collected on or in respect of the related Serviced Whole Loan
after the previous Determination Date and on or prior to the Determination
Date and then on deposit in such Serviced Whole Loan Custodial Account are
not sufficient to make such payment to pay the applicable Servicer, the
Special Servicer or the Trustee (in that order) out of general collections
on such Serviced Whole Loan and related REO Property, any related interest
accrued and payable on the portion of such Advance so reimbursed or being
reimbursed.
The Servicers shall keep and maintain separate accounting records,
on a loan-by-loan and property-by-property basis when appropriate, for the
purpose of justifying any withdrawal from the applicable Serviced Whole Loan
Custodial Account. All withdrawals with respect to each Serviced Whole Loan
shall be made first from the Serviced Whole Loan Custodial Account and then,
from the Certificate Account to the extent permitted by Section 3.05(a).
The Servicers shall pay to the Special Servicer (or to third party
contractors at the direction of the Special Servicer) from the applicable
Serviced Whole Loan Custodial 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 any such third party contractor) is entitled. The
Servicers may rely conclusively on any such certificate and shall have no duty
to re-calculate the amounts stated therein. The Special Servicer shall keep and
maintain separate accounting for each Specially Serviced Mortgage Loan included
in a Serviced Whole Loan and related REO Loan, on a loan-by-loan and
property-by-property basis, for the purpose of justifying any request for
withdrawal from the Serviced Whole Loan Custodial Account.
In the event that a Servicer fails, as of 5:00 p.m. (New York City
time), on any P&I Advance Date, to remit to the Trustee any amounts required to
be so remitted hereunder by such date, such Servicer shall pay to the Trustee,
for the account of the Trustee, interest, calculated at the federal funds rate,
on such amount(s) not timely remitted, from the time such payment was required
to be made (without regard to any grace period) until such payment is received
by the Trustee.
(f) Following the securitization of any Serviced Pari Passu Loan, in
the event the Servicers, Special Servicer or Trustee has reimbursed itself out
of general collections in the applicable Certificate Account for any Servicing
Advance made with respect to the related Serviced Whole Loan or additional trust
fund expense that relates directly to the servicing of such Serviced Whole Loan
(including unpaid Special Servicing Fees relating to such Serviced Whole Loan),
the applicable Servicer or Trustee shall seek (on behalf of the Trust Fund,
subject to the related Co-Lender Agreement) payment or reimbursement for the pro
rata portion of such amounts allocable to such Serviced Pari Passu Loan out of
general collections in the collection account related to such securitization.
Prior to the securitization of any Serviced Pari Passu Loan, in the
event the related Servicer, Special Servicer or Trustee has reimbursed itself
out of general collections in the Certificate Account for any Servicing Advance
made with respect to the related Serviced Whole Loan or additional trust fund
expense that relates directly to the servicing of such Serviced Whole Loan
(including unpaid Special Servicing Fees relating to such Serviced Whole Loan),
the Servicer or Trustee shall seek (on behalf of the Trust Fund, subject to the
related Co-Lender Agreement) payment or reimbursement for the pro rata portion
of such amounts allocable to such Serviced Pari Passu Loan from the holder of
such Serviced Pari Passu Loan.
(g) The Trustee shall make withdrawals from the Class A-MFL Floating
Rate Account in the following order of priority and only for the following
purposes: (i) to withdraw amounts deposited in the Class A-MFL Floating Rate
Account in error and pay such amounts to Persons entitled thereto; (ii) out of
interest amounts to make regularly scheduled payments of interest required to be
paid to the Class A-MFL Swap Counterparty under the Class A-MFL Swap Contract as
specified in Section 3.32(c), provided there is no Class A-MFL Swap Default;
(iii) to make distributions to the Holders of the Class A-MFL Certificates
pursuant to Section 4.01(m); and (iv) to clear and terminate the Class A-MFL
Floating Rate Account pursuant to Section 9.01.
(h) The Trustee shall make withdrawals from the Class A-JFL Floating
Rate Account in the following order of priority and only for the following
purposes: (i) to withdraw amounts deposited in the Class A-JFL Floating Rate
Account in error and pay such amounts to Persons entitled thereto; (ii) out of
interest amounts to make regularly scheduled payments of interest required to be
paid to the Class A-JFL Swap Counterparty under the Class A-JFL Swap Contract as
specified in Section 3.32(c), provided there is no Class A-JFL Swap Default;
(iii) to make distributions to the Holders of the Class A-JFL Certificates
pursuant to Section 4.01(n); and (iv) to clear and terminate the Class A-JFL
Floating Rate Account pursuant to Section 9.01.
Section 3.06 Investment of Funds in the Certificate Account, the
Serviced Whole Loan Custodial Account, the REO Accounts, the Distribution
Account, the Class A-MFL Floating Rate Account, the Class A-JFL Floating Rate
Account and the Excess Liquidation Proceeds Reserve Account.
(a) The Servicers may direct any depository institution maintaining
the Certificate Account and any Serviced Whole Loan Custodial Account (for
purposes of this Section 3.06, an "Investment Account") and the Special Servicer
may direct any depository institution maintaining the applicable REO Account
(also for purposes of this Section 3.06, an "Investment Account") to invest, or
if it is such depository institution, may itself invest, the funds held therein
only in one or more Permitted Investments bearing interest or sold at a
discount, and maturing, unless payable on demand, (i) 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, if a
Person other than the depository institution maintaining such account is the
obligor thereon and (ii) no later than the date on which such funds are required
to be withdrawn from such account pursuant to this Agreement, if the depository
institution maintaining such account is the obligor thereon. All such Permitted
Investments shall be held to maturity, unless payable on demand. Any investment
of funds in an Investment Account shall be made in the name of the Trustee (in
its capacity as such) for the benefit of the Certificateholders and, in the case
of a Permitted Investment in any Investment Account solely related to a Serviced
Whole Loan, for the benefit of the holders of any related Serviced Companion
Loan, but in each case, subject to the Servicer's interest as provided for in
Section 3.06(b) below. The Servicers (in the case of the Certificate Account and
the Serviced Whole Loan Custodial Account) or the Special Servicer (in the case
of each REO Account), on behalf of the Trustee and, in the case of any
Investment Account solely related to a Serviced Whole Loan, on behalf of the
holders of any related Serviced Companion Loan, shall maintain continuous
physical possession of any Permitted Investment of amounts in the Certificate
Account, any Serviced Whole Loan Custodial Account or any REO Account that is
either (i) a "certificated security," as such term is defined in the UCC (such
that the Trustee shall have control pursuant to Section 8-106 of the UCC) or
(ii) other property in which a secured party may perfect its security interest
by physical possession under the UCC or any other applicable law. Funds on
deposit in the Interest Reserve Account, if any, shall remain uninvested. In the
case of any Permitted Investment held in the form of a "security entitlement"
(within the meaning of Section 8-102(a)(17) of the UCC), the Servicer or the
Special Servicer, as applicable, shall take or cause to be taken such action as
the Trustee deems reasonably necessary to cause the Trustee to have control over
such security entitlement. In the event amounts on deposit in an Investment
Account are at any time invested in a Permitted Investment payable on demand,
the Servicers (in the case of the Certificate Account and any Serviced Whole
Loan Custodial Account), or the Special Servicer (in the case of an REO 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 (a) all amounts then payable thereunder and (b) the amount required to
be withdrawn on such date; and
(ii) demand payment of all amounts due thereunder promptly upon
determination by the Servicer or the Special Servicer, 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) Interest and investment income realized on funds deposited in
any Certificate Account and any Serviced Whole Loan Custodial Account, to the
extent of the Net Investment Earnings, if any, with respect to such account for
each period from any Distribution Date to the immediately succeeding P&I Advance
Date, shall be for the sole and exclusive benefit of the applicable Servicer and
shall be subject to its withdrawal, or withdrawal at its direction, in
accordance with Section 3.05(a) or 3.05(e), as the case may be. Interest and
investment income realized on funds deposited in the REO Account, to the extent
of the Net Investment Earnings, if any, with respect to such account for each
period from any Distribution Date to the immediately succeeding P&I Advance
Date, 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(c). In the
event that any loss shall be incurred in respect of any Permitted Investment on
deposit in any Certificate Account, any Serviced Whole Loan Custodial Account or
any REO Account, the applicable Servicer (in the case of any Certificate Account
and any Serviced Whole Loan Custodial Account) and the Special Servicer (in the
case of the REO Account) shall deposit therein, no later than the P&I Advance
Date, without right of reimbursement, the amount of Net Investment Loss, if any,
with respect to such account for the period from the immediately preceding
Distribution Date to such P&I Advance Date provided, that neither the Servicers
nor the Special Servicer shall be required to deposit any loss on an investment
of funds in an Investment Account if such loss is incurred solely as a result of
the insolvency of the federal 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 in the month in which the loss occurred and at
the time such investment was made.
(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, the Trustee may and, subject to Section 8.02, upon the request of
Holders of Certificates entitled to a majority of the Voting Rights allocated to
any Class shall, take such action as may be appropriate to enforce such payment
or performance, including the institution and prosecution of appropriate
proceedings.
(d) Funds in the Distribution Account, the Floating Rate Accounts
and the Excess Liquidation Proceeds Reserve Account may be invested and, if
invested, shall be invested by, and at the risk of, the Trustee in Permitted
Investments selected by the Trustee which shall mature, unless payable on
demand, not later than the Distribution Date, and any such Permitted Investment
shall not be sold or disposed of prior to its maturity unless payable on demand.
All such Permitted Investments shall be made in the name of "▇▇▇▇▇ Fargo Bank,
N.A., as Trustee for the Holders of the GE Commercial Mortgage Corporation,
Commercial Mortgage Pass-Through Certificates, Series ▇▇▇▇-▇▇." ▇▇▇▇ of the
Depositor, the Mortgagors, the Servicers or the Special Servicer shall be liable
for any loss incurred on such Permitted Investments.
An amount equal to all income and gain realized from any such
investment shall be paid to the Trustee as additional compensation and shall be
subject to its withdrawal at any time from time to time. The amount of any
losses incurred in respect of such investments shall be for the account of the
Trustee which shall deposit the amount of such loss (to the extent not offset by
income from other investments) in the Distribution Account, the Floating Rate
Accounts or the Excess Liquidation Proceeds Reserve Account, as the case may be,
out of its own funds immediately as realized. If the Trustee deposits in or
transfers to the Distribution Account or the Excess Liquidation Proceeds Reserve
Account, as the case may be, any amount not required to be deposited therein or
transferred thereto, it may at any time withdraw such amount or retransfer such
amount from the Distribution Account, the Floating Rate Accounts or the Excess
Liquidation Proceeds Reserve Account, as the case may be, any provision herein
to the contrary notwithstanding.
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage.
(a) Each Servicer (with respect to each Mortgage Loan or Serviced
Whole Loan) shall use its reasonable efforts to cause the Mortgagor (other than
with respect to any Non-Serviced Mortgage Loans) to maintain, to the extent
required by the terms of the related Mortgage Note or loan documents relating to
the Mortgage Loan and required by the Servicing Standard, for each Mortgage Loan
(other than any Non-Serviced Mortgage Loan) and Serviced Whole Loan all
insurance coverage as is required under the related Mortgage to the extent that
the Trustee, as mortgagee, has an insurable interest; provided, however, that if
any Mortgage permits the holder thereof to dictate to the Mortgagor the
insurance coverage to be maintained on such Mortgaged Property, the applicable
Servicer shall impose such insurance requirements as are consistent with the
Servicing Standard. If such Mortgagor fails to maintain such insurance, then the
applicable Servicer shall itself maintain such insurance coverage, to the extent
such insurance is available at commercially reasonable rates (subject to the
provisions of the next paragraph with respect to terrorism insurance) and to the
extent the Trustee has an insurable interest therein. Subject to Section
3.17(a), the Special Servicer shall maintain for each REO Property no less
insurance coverage than was previously required of the Mortgagor under the
related Mortgage Loan or Serviced Whole Loan (to the extent available at
commercially reasonable rates). All Insurance Policies maintained by the
Servicer or the Special Servicer shall (i) contain a "standard" mortgagee
clause, with loss payable to the Servicer on behalf of the Trustee (in the case
of insurance maintained in respect of any Mortgage Loan or any Serviced Whole
Loan other than REO Properties), (ii) be in the name(s) of the Trustee (and, in
the case of a Serviced Whole Loan, the holders of any related Serviced Companion
Loan) (in the case of insurance maintained in respect of REO Properties), (iii)
include coverage in an amount not less than the lesser of (x) the full
replacement cost of the improvements securing such Mortgage Loan or Serviced
Whole Loan or the related REO Loan, as applicable, or (y) the outstanding
principal balance owing on such Mortgage Loan or Serviced Whole Loan or related
REO Loan, as applicable, and in any event, the amount necessary to avoid the
operation of any co-insurance provisions, (iv) include a replacement cost
endorsement providing no deduction for depreciation (unless such endorsement is
not permitted under the related loan documents), (v) be noncancelable without 30
days prior written notice to the insured party (except in the case of
nonpayment, in which case such policy shall not be cancelled without 10 days
prior notice) and (vi) be issued by a Qualified Insurer authorized under
applicable law to issue such Insurance Policies. Any amounts collected by the
Servicers or the Special Servicer under any such Insurance 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 and the provisions of the
related Mortgage Loan or Serviced Whole Loan) shall be deposited in the
Certificate Account or the applicable REO Account with respect to REO Properties
(or, in the case of a Serviced Whole Loan, in the Serviced Whole Loan Custodial
Account of the Servicer), subject to withdrawal pursuant to Section 3.05(a) (or
Section 3.05(e), as applicable). Any costs incurred by the Servicers in
maintaining any such Insurance Policies in respect of Mortgage Loans (other than
REO Properties or any Serviced Whole Loan) (i) if the Mortgagor defaults on its
obligation to do so, shall be advanced by the applicable Servicer as a Servicing
Advance (other than for the Non-Serviced Mortgage Loans or unless such advance
is determined to be a Nonrecoverable Servicing Advance) and will be charged to
the related Mortgagor and (ii) shall not, for purposes thereof, including,
without limitation, calculating monthly distributions to Certificateholders, be
added to the unpaid principal balance of the related Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so permit. Any cost
incurred by the Special Servicer in maintaining any such Insurance Policies with
respect to REO Properties shall be an expense of the Trust payable out of the
related REO Account pursuant to Section 3.16(c) or, if the amount on deposit
therein is insufficient therefor, advanced by the applicable Servicer as a
Servicing Advance.
Notwithstanding the foregoing, the Servicers or Special Servicer (in
the case of REO Loans), as applicable, will not be required to maintain, and
shall not cause a Mortgagor to be in default with respect to the failure of the
related Mortgagor to obtain, all-risk casualty insurance which does not contain
any carve-out for acts of terrorism or similar acts, if and only if (i) such
insurance is not required under the loan documents or (ii) the Special Servicer
has determined, in accordance with the Servicing Standard, that either (a) such
insurance is not available at any rate or (b) such insurance is not available at
commercially reasonable rates and that such hazards are not at the time commonly
insured against for properties similar to the Mortgaged Property and located in
or around the geographic region in which such Mortgaged Property is located;
provided, however that during the period that the Special Servicer is evaluating
such insurance hereunder, the applicable Servicer shall not be liable for any
loss related to its failure to require the Mortgagor to maintain terrorism
insurance and shall not be in default of its obligations hereunder as a result
of such failure. The Special Servicer shall promptly notify the applicable
Servicer of each determination under this paragraph.
(b) (i) If the Servicers or the Special Servicer shall obtain and
maintain a blanket Insurance Policy with a Qualified Insurer insuring against
fire and hazard losses on all of the Mortgage Loans, Serviced Whole Loans or REO
Properties (other than the Non-Serviced Mortgage Loans and any REO Property
related thereto), as the case may be, required to be serviced and administered
hereunder, then, to the extent such Insurance Policy provides protection
equivalent to the individual policies otherwise required, the Servicers or the
Special Servicer shall conclusively be deemed to have satisfied its obligation
to cause fire and hazard insurance to be maintained on the related Mortgaged
Properties or REO Properties. Such Insurance Policy may contain a deductible
clause, in which case the Servicers or the Special Servicer shall, if there
shall not have been maintained on the related Mortgaged Property or REO Property
a fire and hazard Insurance Policy complying with the requirements of Section
3.07(a), and there shall have been one or more losses which would have been
covered by such Insurance Policy, promptly deposit into the Certificate Account
(or in the case of any Serviced Whole Loan, the related Serviced Whole Loan
Custodial Account) from its own funds the amount of such loss or losses that
would have been covered under the individual policy but are not covered under
the blanket Insurance Policy because of such deductible clause to the extent
that any such deductible exceeds the deductible limitation that pertained to the
related Mortgage Loan or Serviced Whole Loan, or in the absence of such
deductible limitation, the deductible limitation which is consistent with the
Servicing Standard. In connection with its activities as administrator and
Servicer of the Mortgage Loans (other than any Non-Serviced Mortgage Loans) and
the Serviced Whole Loan, each Servicer agrees to prepare and present, on behalf
of itself, the Trustee and Certificateholders (and, in the case of any Serviced
Whole Loan, on behalf of the holder of any related Serviced Companion Loan),
claims under any such blanket Insurance Policy in a timely fashion in accordance
with the terms of such policy. The Special Servicer, to the extent consistent
with the Servicing Standard, may maintain, earthquake insurance on REO
Properties, provided coverage is available at commercially reasonable rates, the
cost of which shall be a Servicing Advance.
(ii) If the Servicers or the Special Servicer shall cause any
Mortgaged Property or REO Property to be covered by a master single
interest or force-placed insurance policy with a Qualified Insurer naming
the applicable Servicer or the Special Servicer, as applicable, on behalf
of the Trustee for the benefit of the Certificateholders (and, in the case
of any Serviced Whole Loan, the holders of any related Serviced Companion
Loan) as the loss payee, then to the extent such Insurance Policy provides
protection equivalent to the individual policies otherwise required, the
applicable Servicer or the Special Servicer shall conclusively be deemed
to have satisfied its obligation to cause such insurance to be maintained
on the related Mortgaged Properties and REO Properties. In the event
either Servicer or the Special Servicer shall cause any Mortgaged Property
or REO Property to be covered by such master single interest or
force-placed insurance policy, the incremental costs of such insurance
applicable to such Mortgaged Property or REO Property (i.e., other than
any minimum or standby premium payable for such policy whether or not any
Mortgaged Property or REO Property is covered thereby) shall be paid by
the applicable Servicer as a Servicing Advance (or if such Servicing
Advance would be a Nonrecoverable Advance, as a Trust Fund expense). Such
master single interest or force-placed policy may contain a commercially
reasonable deductible clause, in which case the applicable Servicer or the
Special Servicer shall, in the event that there shall not have been
maintained on the related Mortgaged Property or REO Property a policy
otherwise complying with the provisions of Section 3.07(a), and there
shall have been one or more losses which would have been covered by such
policy had it been maintained, deposit into the Certificate Account (or in
the case of any Serviced Whole Loan, the related Serviced Whole Loan
Custodial Account) from its own funds the amount not otherwise payable
under the master single interest or force-placed insurance policy because
of such deductible clause, to the extent that any such deductible exceeds
the deductible limitation set forth in the related loan documents for the
original policy that pertained to the related Mortgage Loan or Serviced
Whole Loan, or, in the absence of any such deductible limitation, the
deductible limitation which is consistent with the Servicing Standard.
(c) Each of the Servicers and the Special Servicer shall obtain and
maintain at its own expense and keep in full force and effect throughout the
term of this Agreement a blanket fidelity bond and an errors and omissions
Insurance Policy with a Qualified Insurer covering the Servicers' and the
Special Servicer's, as applicable, officers and employees in connection with its
activities under this Agreement. Notwithstanding the foregoing, so long as
either (i) the long term unsecured debt or the deposit obligations or
claims-paying ability of the Servicers or the Special Servicer (or its
respective direct or indirect corporate parent) is rated at least "A" by S&P and
"A2" by ▇▇▇▇▇'▇ or (ii) the Servicers or the Special Servicer obtains written
confirmation from each Rating Agency that such action will not result in the
withdrawal, downgrade, or qualification of the then-current rating assigned by
the Rating Agency to any Class of Certificates or Serviced Companion Loan
Securities or any class of securities backed in whole or in part by any Serviced
Pari Passu Loan then rated by such Rating Agency (the cost, if any, of obtaining
such confirmation shall be paid by the party seeking such confirmation), the
Servicers or the Special Servicer shall be allowed to provide self-insurance
with respect to all or a portion of such fidelity bond and errors and omissions
Insurance Policy. With respect to any multifamily loan, the amount of coverage
shall be at least equal to the coverage that would be required by ▇▇▇▇▇▇ ▇▇▇ or
▇▇▇▇▇▇▇ Mac, whichever is greater, with respect to the Servicers or the Special
Servicer if the Servicers or the Special Servicer, as applicable, were servicing
and administering the Mortgage Loans, Serviced Whole Loans or Specially Serviced
Mortgage Loans, as applicable, for ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac. Coverage of the
Servicers or the Special Servicer under a policy or bond obtained by an
Affiliate of the Servicers or the Special Servicer and providing the coverage
required by this Section 3.07(c) shall satisfy the requirements of this Section
3.07(c). The Special Servicer and the Servicers will promptly report in writing
to the Trustee (and in the case of any Serviced Whole Loans, the holders of any
related Serviced Companion Loan) any material changes that may occur in their
respective fidelity bonds, if any, and/or their respective errors and omissions
Insurance Policies, as the case may be, and upon request will furnish to the
Trustee copies of all binders and policies or certificates evidencing that such
bonds, if any, and insurance policies are in full force and effect.
(d) At the time either Servicer determines in accordance with the
Servicing Standard that any Mortgaged Property (other than the Mortgaged
Property related to a Non-Serviced Mortgage Loan) shall be in a federally
designated special flood hazard area (and flood insurance has been made
available and is required by FEMA), such Servicer shall use reasonable efforts
to cause the related Mortgagor (in accordance with applicable law and the terms
of the loan documents) to maintain, and, if the related Mortgagor shall default
in its obligation to so maintain, shall itself maintain to the extent available
at commercially reasonable rates (as determined by such Servicer in accordance
with the Servicing Standard), flood insurance in respect thereof, but only to
the extent the Trustee as mortgagee has an insurable interest therein, the
related Mortgage Loan or Serviced Whole Loan permits the mortgagee to require
such coverage and the maintenance of such coverage is consistent with the
Servicing Standard. Such flood insurance shall be in an amount equal to the
lesser of (i) the unpaid principal balance of the related Mortgage Loan or
Serviced Whole Loan, and (ii) the maximum amount of insurance which is available
under the National Flood Insurance Act of 1968, as amended. If the cost of any
insurance described above is not borne by the Mortgagor, the related Servicer
shall promptly make a Servicing Advance for such costs (unless such advance is
determined to be a Nonrecoverable Servicing Advance).
(e) During all such times as any REO Property (other than the
Mortgaged Property related to a Non-Serviced Mortgage Loan) shall be located in
a federally designated special flood hazard area, the Special Servicer will
cause to be maintained, to the extent available at commercially reasonable rates
(as determined by the Special Servicer in accordance with the Servicing
Standard), a flood insurance policy (if such insurance is required by FEMA)
meeting the requirements of the current guidelines of the Federal Insurance
Administration. Such flood insurance shall be in an amount equal to the lesser
of (i) the unpaid principal balance of the related Mortgage Loan or Serviced
Whole Loan, and (ii) the maximum amount of insurance which is available under
the National Flood Insurance Act of 1968, as amended. The cost of any such flood
insurance with respect to an REO Property shall be an expense of the Trust
payable out of the related REO Account pursuant to Section 3.16(c) or, if the
amount on deposit therein is insufficient therefor, paid by the Servicer as a
Servicing Advance.
(f) Within 45 days after the Closing Date, with respect to each of
the Mortgage Loans (other than Non-Serviced Mortgage Loans) and Serviced Whole
Loans covered by an Environmental Insurance Policy that are listed on Schedule 4
hereto, the Servicers shall notify the insurer under such Environmental
Insurance Policy and take all other action in accordance with the Servicing
Standard for the Trustee, on behalf of the Certificateholders (and, in the case
of any Serviced Whole Loan, the holders of any related Serviced Companion Loan)
to be an insured (and for the Servicers, on behalf of the Trust (and, in the
case of any Serviced Whole Loan, the holders of any related Serviced Companion
Loan), to make claims) under such Environmental Insurance Policy. In the event
that either Servicer or the Special Servicer has actual knowledge of any event
(an "Insured Environmental Event") giving rise to a claim under any
Environmental Insurance Policy in respect of any Mortgage Loan (other than a
Non-Serviced Mortgage Loan) covered thereby, such Servicer or the Special
Servicer (with respect to Specially Serviced Mortgage Loans) shall, in
accordance with the terms of such Environmental Insurance Policy and the
Servicing Standard, timely make a claim thereunder with the appropriate insurer
and shall take such other actions in accordance with the Servicing Standard
which are necessary under such Environmental Insurance Policy in order to
realize the full value thereof for the benefit of the Certificateholders (and,
in the case of any Serviced Whole Loan, the holders of any related Serviced
Companion Loan). Any legal fees, premiums or other out-of-pocket costs incurred
in accordance with the Servicing Standard under an Environmental Insurance
Policy shall be paid by such Servicer and shall be reimbursable to it as a
Servicing Advance. With respect to each Environmental Insurance Policy that
relates to one or more Mortgage Loans, each of the Servicers and the Special
Servicer shall review and familiarize itself with the terms and conditions
relating to enforcement of claims and shall monitor the dates by which any claim
must be made or any action taken under such policy to realize the full value
thereof for the benefit of the Certificateholders (and, in the case of any
Serviced Whole Loan, the holders of any related Serviced Companion Loan) in the
event either the Servicer or the Special Servicer has actual knowledge of an
Insured Environmental Event giving rise to a claim under such policy. Any legal
fees, premiums or other out-of-pocket costs incurred in accordance with the
Servicing Standard in connection with a resolution of such termination of an
Environmental Insurance Policy shall be paid by such Servicer and shall be
reimbursable to it as a Servicing Advance.
In the event that either Servicer (with respect to any Mortgage Loan
(other than a Non-Serviced Mortgage Loan) or Serviced Whole Loan other than a
Specially Serviced Mortgage Loan) or the Special Servicer (with respect to any
Specially Serviced Mortgage Loan) receives notice of any termination of any
Environmental Insurance Policy that relates to one or more of the Mortgage Loans
or Serviced Whole Loans it is required to service hereunder, such Servicer or
the Special Servicer, as applicable, shall, within five Business Days after
receipt of such notice, notify such Servicer or Special Servicer, as applicable,
the Directing Certificateholder, the Rating Agencies, the Trustee (and, in the
case of any Serviced Whole Loan, the holders of any related Serviced Pari Passu
Loan or Serviced Companion Loan) of such termination in writing. Upon receipt of
such notice, such Servicer or Special Servicer, as applicable, shall address
such termination in accordance with Section 3.07(a) in the same manner as it
would the termination of any other Insurance Policy required under the related
loan documents.
Section 3.08 Enforcement of Due-On-Sale and Due-On-Encumbrance
Clauses; Assumption Agreements.
(a) As to each Mortgage Loan (other than a Non-Serviced Mortgage
Loan) and Serviced Whole Loan which contains a provision in the nature of a
"due-on-sale" clause (including, without limitation, any clause which governs
sales or transfers of the Mortgaged Property (in full or in part) or the sale,
transfer, pledge or hypothecation of direct or indirect interests in the related
Mortgagor or its owners), which by its terms:
(i) provides that such Mortgage Loan or Serviced Whole Loan shall
(or may at the mortgagee's option) become due and payable upon such sale,
transfer, pledge or hypothecation;
(ii) provides that such Mortgage Loan or Serviced Whole Loan may not
be assumed without the consent of the mortgagee in connection with any
such sale or other transfer; or
(iii) provides that such Mortgage Loan or Serviced Whole Loan may be
assumed or the related Mortgaged Property may be transferred without the
consent of the mortgagee, provided certain conditions set forth in the
Mortgage Loan documents are satisfied,
then, for so long as such Mortgage Loan or Serviced Whole Loan is serviced
pursuant to this Agreement, the Servicer upon receipt of notice of an action
that may affect the lender's rights with respect to such "due-on-sale" clause,
shall forward such notice, along with copies of the relevant loan documents, to
the Special Servicer and the Special Servicer, on behalf of the Trustee as the
mortgagee of record, shall subject to Section 3.08(e) and 3.11, exercise (or
waive its right to exercise) any right it may have with respect to such Mortgage
Loan or Serviced Whole Loan (x) to accelerate the payments thereon, (y) to
withhold its consent to any such sale or other transfer and (z) in the case of a
"due-on-sale" clause described in clause (a)(iii) above, to determine whether
the conditions set forth in the Loan Documents have been satisfied, in each case
in a manner consistent with the Servicing Standard.
(b) As to each Mortgage Loan (other than a Non-Serviced Mortgage
Loan) or Serviced Whole Loan which contains a provision in the nature of a
"due-on-encumbrance" clause (including, without limitation, any clause which
governs mezzanine financing of the related Mortgagor or the related Mortgaged
Property or any sale or transfer of preferred equity in the related Mortgagor or
its owners), which by its terms:
(i) provides that such Mortgage Loan or Serviced Whole 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 or the direct or indirect equity interest in the
related Mortgagor;
(ii) requires the consent of the mortgagee to the creation of any
such additional lien or other encumbrance on the related Mortgaged
Property or in the equity of the related Mortgagor; or
(iii) provides that such Mortgaged Property may be further
encumbered without the consent of the mortgagee provided that certain
conditions set forth in the related Mortgage Loan documents have been
satisfied;
then, for so long as such Mortgage Loan or Serviced Whole Loan is serviced
pursuant to this Agreement, such Servicer upon receipt of notice of an action
that may affect the lender's rights with respect to such "due-on-encumbrance"
clause, shall forward such notice, along with copies of the relevant loan
documents, to the Special Servicer and the Special Servicer, on behalf of the
Trustee as the mortgagee of record, shall, subject to Section 3.08(e) and
Section 3.11, exercise (or waive its right to exercise) any right it may have
with respect to such Mortgage Loan or Serviced Whole Loan (x) to accelerate the
payments thereon, (y) to withhold its consent to the creation of any such
additional lien or other encumbrance, and (z) in the case of a
"due-on-encumbrance" clause described in clause (b)(iii) above, to determine
whether the conditions set forth in the Mortgage Loan documents have been
satisfied, in each case in a manner consistent with the Servicing Standard. The
Servicers shall reasonably cooperate with the Special Servicer and shall provide
the Special Servicer with any additional information from the related Credit
File that the Special Servicer reasonably may request.
(c) Nothing in this Section 3.08 shall constitute a waiver of the
Trustee's right, as the mortgagee of record, to receive notice of any assumption
of any Mortgage Loan or Serviced Whole Loan it is required to service hereunder,
any sale or other transfer of the related Mortgaged Property or the creation of
any additional lien or other encumbrance with respect to such Mortgaged
Property.
(d) Except as otherwise permitted by Section 3.20, neither the
Servicers nor the Special Servicer shall agree to modify, waive or amend any
term of any Mortgage Loan or Serviced Whole Loan in connection with the taking
of, or the failure to take, any action pursuant to this Section 3.08, other than
the identity of the Mortgagor pursuant to an assumption agreement.
(e) Notwithstanding the foregoing, the Special Servicer shall not
waive any rights under a "due-on-sale" or "due-on-encumbrance" clause unless it
first obtains a written confirmation that such waiver would not cause the
downgrade, qualification or withdrawal of the then current rating assigned to
any of the Certificates from (i) S&P, with respect to any Mortgage Loan
(together with any Mortgage Loans cross-collateralized with such Mortgage Loans
but excluding any Non-Serviced Mortgage Loans) (A) with respect to any
"due-on-sale" clause of any Mortgage Loan, if the applicable Mortgage Loan (1)
represents 5% or more of the Stated Principal Balance of all of the Mortgage
Loans held by the Trust, (2) the Stated Principal Balance of such Mortgage Loan
is over $35,000,000 or (3) is one of the ten largest Mortgage Loans in the Trust
based on principal balance or (B) with respect to any "due-on-encumbrance"
clause if the applicable Mortgage Loan (1) represents 2% or more of the Stated
Principal Balance of all of the Mortgage Loans held by the Trust (or, 5% or more
if such Stated Principal Balance is less than $100,000,000), (2) has a principal
balance over $20,000,000, (3) is one of the ten largest Mortgage Loans based on
Stated Principal Balance, (4) has a Loan-to-Value Ratio (which includes
Additional Debt and proposed debt, if any) that is greater than or equal to 85%,
or (5) has a Debt Service Coverage Ratio (which includes debt service on
Additional Debt and proposed debt, if any) that is less than 1.2x, and (ii)
▇▇▇▇▇'▇ with respect to any Mortgage Loan (together with any Mortgage Loans
cross-collateralized with such Mortgage Loans but excluding any Non-Serviced
Mortgage Loan) that represents one of the ten largest Mortgage Loans based on
Stated Principal Balance. Notwithstanding the foregoing, with respect to each
Serviced Pari Passu Loan, the Special Servicer shall not waive any rights under
a "due-on-sale" or "due-on-encumbrance" clause unless it also obtains a written
confirmation that such waiver would not cause the downgrade, qualification or
withdrawal of the then current rating assigned to any of any class of related
Serviced Companion Loan Securities from any Rating Agencies rating such Serviced
Companion Loan Securities. The Special Servicer shall provide copies of any such
waivers to each Rating Agency with respect to each Mortgage Loan and with
respect to each Specially Serviced Mortgage Loan. Any fee charged by each Rating
Agency in connection with rendering such written confirmation shall be paid by
the related Mortgagor as a condition of considering such waiver, unless the
related loan documents do not permit the lender to require payment of such fees
from the Mortgagor, in which case such fees shall be paid by the related
Mortgage Loan Seller in accordance with the provisions of the related Mortgage
Loan Purchase Agreement. The Special Servicer shall be responsible for obtaining
fees due to the Rating Agencies, as set forth in the preceding sentence. The
Special Servicer shall not permit a Mortgage Loan or Serviced Whole Loan to be
assumed unless the Special Servicer determines that such assumption is
consistent with the Servicing Standard and the loan documents. For a Mortgaged
Property located in California, in making such determination, the Special
Servicer, shall, among other things, take into account, subject to the Servicing
Standard and the loan documents, any increase in taxes assuming the transfer
occurs (using taxes based on a fully assessed number calculated off the proposed
purchase price). For a Mortgaged Property located in California, the Special
Servicer shall, compute a debt service coverage ratio for the Mortgage Loan
using leasing commissions, tenant improvement costs and capital expenditures
deducted from cash flow in amounts equal to the originator's underwritten
capital expenditure, tenant improvement and leasing commission items at
origination and taxes based on a fully assessed number calculated off the
proposed purchase price and shall provide copies of the results of such
calculations to S&P and ▇▇▇▇▇'▇ showing a comparison of the recalculated debt
service coverage ratio versus the debt service coverage ratio at origination.
(f) Notwithstanding anything herein to the contrary, the Servicers
shall approve and close, without the consent of the Special Servicer, the
Directing Certificateholder or (if such Mortgage Loan has a Stated Principal
Balance of less than $35,000,000) any Rating Agency, all initial syndications of
tenant-in-common interests, provided such syndications are specifically
permitted by and in accordance with the related loan documents for any Mortgage
Loan (other than a Non-Serviced Mortgage Loan) or Serviced Whole Loan, that is
not a Specially Serviced Mortgage Loan. Upon completion of any such initial
transfer, the applicable Servicer shall promptly provide notice by electronic
mail thereof to the Special Servicer, which notice shall also (i) advise the
Special Servicer as to the total number of transfers with respect to such
Mortgage Loan or Serviced Whole Loan that such Servicer has approved and closed
as of such date and the expiration date (if any) by which such transfer(s) must
occur pursuant to the related loan documents, and (ii) advise the Special
Servicer of when, with respect to any such Mortgage Loan or Serviced Whole Loan,
such tenant-in-common syndication is complete. All transfers of a
tenant-in-common interest subsequent to the initial syndication shall be
processed and approved solely by the Special Servicer. Any request for a
modification to or extension of the final initial syndication date respecting
any such tenant-in-common transfers or increase in the permitted number of
tenant-in-common interests under the initial syndication shall be processed and
approved solely by the Special Servicer.
Section 3.09 Realization Upon Defaulted Mortgage Loans.
(a) The Special Servicer shall, subject to subsections (b) through
(d) of this Section 3.09, exercise reasonable efforts, consistent with the
Servicing Standard, to foreclose upon or otherwise comparably convert (which
efforts may include an REO Acquisition) the ownership of property securing the
Mortgage Loans (other than a Non-Serviced Mortgage Loan) or any Serviced Whole
Loan, as come into and continue in default as to which no satisfactory
arrangements can be made for collection of delinquent payments pursuant to
Section 3.18 of this Agreement, and which are not released from the Trust Fund
pursuant to any other provision hereof. The foregoing is subject to the
provision that, in any case in which a Mortgaged Property (other than Mortgaged
Properties related to a Non-Serviced Mortgage Loan) shall have suffered damage
from an Uninsured Cause, the applicable Servicer shall not be required to make a
Servicing Advance and expend funds toward the restoration of such property
unless the Special Servicer has determined in its reasonable discretion that
such restoration will increase the net proceeds of liquidation of such Mortgaged
Property to the Certificateholders and, if a Serviced Whole Loan is involved,
the holders of any related Serviced Companion Loan (as a collective whole,
taking into consideration that the Serviced B Note is subordinate to the related
Mortgage Loan and Serviced Pari Passu Loan) after reimbursement to the
applicable Servicer for such Servicing Advance, and such Servicer has determined
that such Servicing Advance together with accrued and unpaid interest thereon
will be recoverable by the Servicer out of the proceeds of liquidation of such
Mortgaged Property, as contemplated in Section 3.05(a)(iv) and Section
3.05(e)(iv) if a Serviced Whole Loan is involved. The Special Servicer shall be
responsible for all other costs and expenses incurred by it in any such
proceedings (such costs and expenses to be advanced by such Servicer to the
Special Servicer as a Servicing Advance), provided that, in each case, such cost
or expense would not, if incurred, constitute a Nonrecoverable Servicing
Advance. Nothing contained in this Section 3.09 shall be construed so as to
require the Servicers or 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 the
applicable Servicer or the Special Servicer in its reasonable judgment taking
into account the factors described in Section 3.18(e) and the results of any
Appraisal obtained pursuant to the following sentence, all such bids to be made
in a manner consistent with the Servicing Standard. If and when the Special
Servicer or the applicable Servicer deems it necessary and prudent for purposes
of establishing the fair market value of any Mortgaged Property securing a
Defaulted Mortgage Loan (other than a Non-Serviced Whole Loan), whether for
purposes of bidding at foreclosure or otherwise, the Special Servicer or the
applicable Servicer, as the case may be, is authorized to have an Appraisal
performed with respect to such property by an Independent MAI-designated
appraiser the cost of which shall be paid by such Servicer as a Servicing
Advance, provided that, in each case, such cost or expense would not, if
incurred, constitute a Nonrecoverable Servicing Advance.
(b) The Special Servicer shall not acquire any personal property
pursuant to this Section 3.09 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 paid by the Servicer as a Servicing Advance)
to the effect that the holding of such personal property by the Trust Fund
will not cause the imposition of a tax on the Lower-Tier REMIC or the
Upper-Tier REMIC under the REMIC Provisions or cause the Lower-Tier REMIC
or the Upper-Tier REMIC to fail to qualify as a REMIC at any time that any
Uncertificated Lower-Tier Interest or Certificate is outstanding.
(c) Notwithstanding the foregoing provisions of this Section 3.09,
neither the Special Servicer nor the Servicers shall, on behalf of the Trustee
(and, in the case of a Mortgaged Property securing a Serviced Whole Loan, also
on behalf of the holders of any related Serviced Companion Loan), obtain title
to a Mortgaged Property by foreclosure, 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, also on behalf of
the holders of any related Serviced Companion Loan), would 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 (as evidenced by an Officer's Certificate to such effect
delivered to the Trustee) the Special Servicer has previously determined in
accordance with the Servicing Standard, based on an Environmental Assessment of
such Mortgaged Property performed by an Independent Person who regularly
conducts Environmental Assessments and performed within six months prior to any
such acquisition of title or other action, that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that taking such actions as
are necessary to bring the Mortgaged Property in compliance therewith is
reasonably likely to produce a greater recovery to the Certificateholders
and, if a Serviced Whole Loan is involved, the holders of any related
Serviced Companion Loan (as a collective whole) on a net present value
basis than not taking such actions, for such purposes taking into account
any insurance coverage provided pursuant to any environmental insurance
polices with respect to the related Mortgaged Property; and
(ii) 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, if such circumstances or
conditions are present for which any such action could be required, that
taking such actions with respect to such Mortgaged Property is reasonably
likely to produce a greater recovery to the Certificateholders and, if a
Serviced Whole Loan is involved, the holders of any related Serviced
Companion Loan (as a collective whole) on a net present value basis than
not taking such actions.
The cost of any such Environmental Assessment shall be paid by the
applicable Servicer as a Servicing Advance and the cost of any remedial,
corrective or other further action contemplated by clause (i) and/or clause (ii)
of the preceding sentence shall be paid by such Servicer as a Servicing Advance,
unless it is a Nonrecoverable Servicing Advance (in which case it shall be an
expense of the Trust Fund (and, if a Serviced Whole Loan is involved, the holder
of any related Serviced Companion Loan) and may be withdrawn by such Servicer
from the Certificate Account (and, if a Serviced Whole Loan is involved, first
from the applicable Serviced Whole Loan Custodial Account and then from the
Certificate Account) at the direction of the Special Servicer); and if any such
Environmental Assessment so warrants, the Special Servicer shall, at the expense
of the Trust Fund and if a Serviced Whole Loan is involved, the holders of any
related Serviced Companion Loan, perform such additional environmental testing
as it deems necessary and prudent to determine whether the conditions described
in clauses (i) and (ii) of the preceding sentence have been satisfied. The
Special Servicer shall review and be familiar with the terms and conditions
relating to enforcing claims and shall monitor the dates by which any claim or
action must be taken (including delivering any notices to the insurer and using
reasonable efforts to perform any actions required under such policy) under each
Environmental Insurance Policy to receive the maximum proceeds available under
such policy for the benefit of the Certificateholders and the Trustee (as holder
of the Uncertificated Lower-Tier Interests, the Class A-MFL Regular Interest and
the Class A-JFL Regular Interest) (and in the case of a Mortgaged Property
securing any Serviced Whole Loan, on behalf of the holders of any related
Serviced Companion Loan (as a collective whole, taking into consideration that
the Serviced B Note is subordinate to the related Mortgage Loan and Serviced
Pari Passu Loan).
(d) If (i) the environmental testing contemplated by subsection (c)
above establishes that either of the conditions set forth in clauses (i) and
(ii) of the first sentence thereof has not been satisfied with respect to any
Mortgaged Property securing a Defaulted Mortgage Loan and (ii) there has been no
breach of any of the representations and warranties set forth in or required to
be made pursuant to Section 2 of each of the Mortgage Loan Purchase Agreements
for which the applicable Mortgage Loan Seller could be required to repurchase
such Defaulted Mortgage Loan pursuant to Section 3 of the applicable Mortgage
Loan Purchase Agreement or a claim could not be made under any Environmental
Insurance Policy, then the Special Servicer shall, subject to Sections 3.27 and
3.29, take such action as it deems to be in the best economic interest of the
Trust Fund and, if a Serviced Whole Loan is involved, the holders of any related
Serviced Companion Loan (as a collective whole, taking into consideration that
the Serviced B Note is subordinate to the related Mortgage Loan and Serviced
Pari Passu Loan) (other than proceeding to acquire title to the Mortgaged
Property) and is hereby authorized at such time as it deems appropriate to
release such Mortgaged Property from the lien of the related Mortgage, provided
that, if such Mortgage Loan has a then outstanding principal balance of greater
than $1,000,000, then prior to the release of the related Mortgaged Property
from the lien of the related Mortgage, (i) the Special Servicer shall have
notified the Rating Agencies, the Trustee, the Directing Certificateholder, the
holder of any Serviced Companion Loan (if such notice is required under the
related Co-Lender Agreement) and the Servicer in writing of its intention to so
release such Mortgaged Property and the basis for such intention, (ii) the
Trustee shall notify the Certificateholders in writing of the Special Servicer's
intention to so release such Mortgaged Property, (iii) the Holders of
Certificates entitled to a majority of the Voting Rights shall have consented to
such release within 30 days of the Trustee's distributing such notice (failure
to respond by the end of such 30-day period being deemed consent) and (iv) the
Special Servicer shall have received written confirmation from each Rating
Agency that such release will not cause the downgrade, withdrawal or
qualification of any of the then-current ratings of any Class of Certificates
and, if a Serviced Whole Loan is involved, any class of Serviced Companion Loan
Securities. To the extent any fee charged by each Rating Agency in connection
with rendering such written confirmation is not paid by the related Mortgagor,
such fee is to be an expense of the Trust or, if such information related to the
ratings of any Serviced Companion Loan Securities, holders of the related
Serviced Companion Loan.
(e) The Special Servicer shall provide written reports and a copy of
any Environmental Assessments to the Trustee, the Directing Certificateholder
and the Servicer monthly regarding any actions taken by the Special Servicer
with respect to any Mortgaged Property securing a Defaulted Mortgage Loan as to
which the environmental testing contemplated in subsection (c) above has
revealed that either of the conditions set forth in clauses (i) and (ii) of the
first sentence thereof has not been satisfied, in each case until the earlier to
occur of satisfaction of both such conditions, repurchase of the related
Mortgage Loan by the applicable Mortgage Loan Seller or release of the lien of
the related Mortgage on such Mortgaged Property. The Trustee shall forward all
such reports to each Rating Agency promptly following the receipt thereof and
the Certificateholders upon written request.
(f) For so long as LNR or any of its Affiliates is the Special
Servicer, the Special Servicer shall provide the applicable Servicer with all
information regarding forgiveness of indebtedness required to be reported with
respect to any Mortgage Loan or Serviced Whole Loan which is abandoned or
foreclosed and to the extent that the such Servicer has received such
information, the Servicer shall report to the Internal Revenue Service and the
related Mortgagor, in the manner required by applicable law, such information
and the Servicer shall report, via Form 1099C, all forgiveness of indebtedness
to the extent such information has been provided to the Servicer by the Special
Servicer. If LNR or any of its Affiliates is no longer the Special Servicer, the
Special Servicer, with the reasonable cooperation of the applicable Servicer,
shall report to the Internal Revenue Service and the related Mortgagor, in the
manner required by applicable law, the information required to be reported
regarding any Mortgaged Property which is abandoned or foreclosed and the
Special Servicer shall report, via Form 1099C, all forgiveness of indebtedness.
The Servicers or the Special Servicer, as applicable, shall deliver a copy of
any such report to the Trustee and in the case of the Special Servicer, the
applicable Servicer.
(g) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of the maintenance of
an action to obtain a deficiency judgment if the state in which the Mortgaged
Property is located and the terms of the Mortgage Loan or Serviced Whole Loan
permit such an action.
(h) The Special Servicer shall maintain accurate records, prepared
by one of its Servicing Officers, of each Final Recovery Determination in
respect of a Defaulted Mortgage Loan or REO Property and the basis thereof. Each
Final Recovery Determination shall be evidenced by an Officer's Certificate
delivered to the Trustee, the Directing Certificateholder, the holders of any
Serviced Companion Loan, if such Final Recovery Determination relates to the
applicable Serviced Whole Loan (if such delivery is required under the related
Co-Lender Agreement), and the applicable Servicer no later than the next
succeeding Determination Date.
Section 3.10 Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan or Serviced Whole
Loan, or the receipt by the applicable Servicer or the Special Servicer, as the
case may be, of a notification that payment in full shall be escrowed in a
manner customary for such purposes, such Servicer or Special Servicer, as the
case may be, will immediately notify the Trustee (and if applicable, the holder
of any Serviced Companion Loan) and request delivery of the related Mortgage
File and if a Serviced Whole Loan is involved, the original Mortgage Notes for
the related Serviced Companion Loan. Any such notice and request shall be in the
form of a Request for Release signed by a Servicing Officer and shall include a
statement to the effect that all amounts received or to be received in
connection with such payment which are required to be deposited in the
Certificate Account pursuant to Section 3.04(a) or the applicable Serviced Whole
Loan Custodial Account pursuant to Section 3.04(e) or remitted to the applicable
Servicer to enable such deposit, have been or will be so deposited. Within seven
Business Days (or within such shorter period as release can reasonably be
accomplished if the Servicer or the Special Servicer notifies the Trustee of an
exigency) of receipt of such notice and request, the Trustee shall release, or
cause any related Custodian to release, the related Mortgage File (and, in the
case of any Serviced Whole Loan, the Trustee (in accordance with the related
Co-Lender Agreement) shall direct or request, as applicable, the holders of any
related Serviced Companion Loan to release the Mortgage Note for such Serviced
Pari Passu Loan) or Serviced Companion Loan to the applicable Servicer or
Special Servicer, as the case may be. If an assignment of Mortgage, assignment
of Assignment of Leases, assignment of Security Agreement or assignment of UCC
Financing Statement has been recorded in the name of MERS or its designee, the
applicable Servicer shall take all necessary action to reflect the release of
such assignment of Mortgage, assignment of Assignment of Leases, assignment of
Security Agreement or assignment of UCC Financing Statement on the records of
MERS. No expenses incurred in connection with any instrument of satisfaction or
deed of reconveyance shall be an expense of the Trustee or chargeable to the
Certificate Account or any Serviced Whole Loan Custodial Account.
(b) From time to time as is appropriate for servicing or foreclosure
of any Mortgage Loan (other than a Non-Serviced Mortgage Loan) or Serviced Whole
Loan, the Servicers or the Special Servicer shall deliver to the Trustee a
Request for Release signed by a Servicing Officer. Upon receipt of the
foregoing, the Trustee shall deliver or cause the related Custodian to deliver,
the Mortgage File (other than the documents referred to in clause (xix) of the
definition of "Mortgage File") or any document therein and if a Serviced Whole
Loan is involved, the original Mortgage Notes for the related Serviced Companion
Loan to the applicable Servicer or the Special Servicer (or a designee), as the
case may be. Upon return of such Mortgage File or such document to the Trustee
or the related Custodian, or the delivery to the Trustee of a certificate of a
Servicing Officer of the applicable Servicer or the Special Servicer, as the
case may be, stating that such Mortgage Loan or Serviced Whole Loan was
liquidated and that all amounts received or to be received in connection with
such liquidation which are required to be deposited into the Certificate Account
pursuant to Section 3.04(a) or the applicable Serviced Whole Loan Custodial
Account pursuant to Section 3.04(e) have been or will be so deposited, or that
such Mortgage Loan has become an REO Property, the Trustee shall acknowledge
receipt of such Mortgage File or such certificate, as the case may be.
(c) Within seven (7) Business Days (or within such shorter period as
delivery can reasonably be accomplished if the Special Servicer notifies the
Trustee in writing of an exigency) of receipt thereof, the Trustee shall execute
and deliver to the Special Servicer any court pleadings, requests for trustee's
sale or other documents 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. The
Special Servicer shall be responsible for the preparation of all such documents
and pleadings. When submitted to the Trustee for signature, such documents or
pleadings shall be accompanied by a certificate of a Servicing Officer
requesting that such pleadings or documents be executed by the Trustee and
certifying as to the reason such documents or pleadings are required and that
the execution and delivery thereof by 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.
(d) If from time to time with respect to any Non-Serviced Mortgage
Loan, pursuant to the terms of the related Co-Lender Agreement and the related
Non-Serviced Mortgage Loan Pooling Agreement, and as appropriate for enforcing
the terms of the Non-Serviced Mortgage Loan, the related Non-Serviced Mortgage
Loan Servicer requests delivery to it of the original Mortgage Note for the
Non-Serviced Mortgage Loan, then the Trustee shall release or cause the release
of such original Mortgage Note to the related Non-Serviced Mortgage Loan
Servicer or its designee. In connection with the release of the original
Mortgage Note for the related Non-Serviced Mortgage Loan in accordance with the
preceding sentence, the Trustee shall only be required to deliver such Mortgage
Note to the related Non-Serviced Mortgage Loan Servicer upon delivery to the
Trustee of a custodial agreement which shall be reasonably satisfactory to the
parties thereto and which shall evidence the holding by the related Non-Serviced
Mortgage Loan Servicer of such original Mortgage Note as custodian on behalf of
and for the benefit of the Trustee.
Section 3.11 Servicing Compensation.
(a) As compensation for its activities hereunder, the Servicers, as
applicable, shall be entitled to receive the Servicing Fee with respect to each
Mortgage Loan, Serviced Companion Loan and REO Loan. As to each such Mortgage
Loan, Serviced Companion Loan and REO Loan, the Servicing Fee shall accrue from
time to time at the Servicing Fee Rate and shall be computed on the basis of the
Stated Principal Balance of such Mortgage Loan or Serviced Companion Loan or REO
Loan and a 360-day year consisting of twelve 30-day months. The Servicing Fee
with respect to any such Mortgage Loan, Serviced Companion Loan or REO Loan
shall cease to accrue if a Liquidation Event occurs in respect thereof. The
Servicing Fee shall be payable monthly, on a loan-by-loan basis, from payments
of interest on each Mortgage Loan, Serviced Companion Loan and REO Revenues
allocable as interest on each REO Loan, and as otherwise provided by Sections
3.05(a) and 3.05(e). The Servicer shall be entitled to recover unpaid Servicing
Fees in respect of any such Mortgage Loan, Serviced Companion Loan or REO Loan
out of that portion of related payments, Insurance Proceeds and Condemnation
Proceeds, Liquidation Proceeds and REO Revenues (in the case of an REO Loan)
allocable as recoveries of interest, to the extent permitted by Section 3.05(a)
and 3.05(e). The right to receive the Servicing Fee may not be transferred in
whole or in part except in connection with the transfer of all of such
Servicer's responsibilities and obligations under this Agreement.
The Servicers shall not be required (subject, with respect to any
Serviced Whole Loan, to the terms of the related Co-Lender Agreement) to deposit
in the Certificate Account pursuant to Section 3.04(a) or the applicable
Serviced Whole Loan Custodial Account pursuant to Section 3.04(e), all
assumption, extension, modification, consent, waiver, earnout, defeasance and
similar fees, assumption application fees and other application and processing
fees, modification application fees and charges for beneficiary statements or
demands, and charges collected for checks returned for insufficient funds
received on or with respect to the Mortgage Loans that are not Specially
Serviced Mortgage Loans (other than any Non-Serviced Mortgage Loan and any
successor REO Loan).
Of the fees set forth in the preceding paragraph, the Servicers
shall be entitled to retain as additional compensation:
(i) 100% of such modification, consent, waiver, earnout, defeasance,
modification application fees and other application and processing fees
(other than assumption application and processing fees) and similar fees
(other than any assumption fees and assumption application fees, which are
provided for below), to the extent the applicable Servicer and not the
Special Servicer, has performed the related modification, consent, waiver,
earnout, defeasance or similar action, as applicable, in accordance with
this Agreement (in particular, subject to the limitations on the
modifications, consents and waivers that may be performed by the Servicer
set forth in Section 3.20 of this Agreement);
(ii) 50% of all such assumption fees received on or with respect to
the Mortgage Loans that are not Specially Serviced Mortgage Loans (other
than any Non-Serviced Mortgage Loan and any successor REO Loan and any
successor REO Loan and other than with respect to transfers of tenant-
in-common interests processed by the Special Servicer); provided, that the
applicable Servicer shall retain 100% of such fees with respect to initial
syndications of tenant-in-common interests processed by it;
(iii) 100% of all such assumption application and processing fees
other than with respect to transfers of tenant-in-common interests
processed by the Special Servicer; provided, that the applicable Servicer
shall retain 100% of such fees with respect to initial syndications of
tenant-in-common interests processed by it; and
(iv) 100% of all check charges, fees and charges for beneficiary
statements and demands for checks returned for insufficient funds with
respect to the Mortgage Loans (other than the Non-Serviced Mortgage
Loans);
in each case, to the extent that all amounts then due and payable with respect
to the related Mortgage Loan have been paid.
The Servicers shall remit to the Special Servicer any of such fees
and amounts that the Servicers are not entitled to retain as set forth in
clauses (i), (ii) and (iii) of the previous sentence.
The Special Servicer will not waive any assumption fees with respect
to any Mortgage Loan that is not a Specially Serviced Mortgage Loan without the
prior written consent of the Servicer. The fee payable to the applicable
Servicer for an assumption of a Mortgage Loan that is not a Specially Serviced
Mortgage Loan shall be either the fee set forth in the loan documents relating
to the applicable Mortgage Loan or Serviced Whole Loan, or, if no assumption fee
is so specified (and to the extent not inconsistent with the loan documents),
then such fee shall be 1% of the outstanding Stated Principal Balance of such
Mortgage Loan on the date it is assumed. In the event that any non-Specially
Serviced Mortgage Loan is subject to both an assumption and a modification,
consent and/or waiver, then notwithstanding any such modification, consent
and/or waiver fee, the Servicer shall be entitled to receive and retain the
assumption fee determined as set forth in the preceding sentence. With respect
to any non-Specially Serviced Mortgage Loan, the Special Servicer shall remit to
the applicable Servicer any assumption fees that it receives within one Business
Day of receipt thereof. In addition, such Servicer shall be entitled to retain
as additional servicing compensation any charges for processing Mortgagor
requests, beneficiary statements or demands and amounts collected for checks
returned for insufficient funds, in each case only to the extent actually paid
by the related Mortgagor and shall not be required to deposit such amounts in
the Certificate Account pursuant to Section 3.04(a). The Servicer shall also be
entitled to additional servicing compensation in the form of: (i) Penalty
Charges received on each Mortgage Loan and accrued during such time as such
Mortgage Loan was not a Specially Serviced Mortgage Loan, but only to the extent
actually paid by the related Mortgagor and only to the extent that all amounts
then due and payable with respect to the related Mortgage Loan (including
interest on Advances) have been paid and are not needed to first reimburse the
Trust Fund for (A) additional expenses that have been incurred by the Trust Fund
(other than Special Servicing Fees, Workout Fees and Liquidation Fees) in
connection with such Mortgage Loan that have been paid since the prior
Determination Date and (B) interest on Advances previously paid to the Servicer
or Trustee, as applicable, that has accrued since the prior Determination Date
with respect to the related Mortgage Loan; (ii) interest or other income earned
on deposits relating to the Trust Fund in the Certificate Account or any
Serviced Whole Loan Custodial Account in accordance with Section 3.06(b) (but
only to the extent of the Net Investment Earnings, if any, with respect to such
account for each period from any Distribution Date to the immediately succeeding
P&I Advance Date); (iii) interest earned on deposits in the Servicing Account
which are not required by applicable law or the related Mortgage Loan or
Serviced Whole Loan to be paid to the Mortgagor and (iv) Prepayment Interest
Excesses not required to be applied pursuant to Section 3.19. The Servicers
shall each be required to pay out of its own funds all expenses incurred by it
in connection with its servicing activities hereunder (including, without
limitation, payment of any amounts due and owing to any of its Sub-Servicers and
the premiums for any blanket Insurance Policy insuring against hazard losses
pursuant to Section 3.07), if and to the extent such expenses are not payable
directly out of the Certificate Account or if applicable, the Serviced Whole
Loan Custodial Account, and the Servicers shall not be entitled to reimbursement
therefor except as expressly provided in this Agreement.
(b) As compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Special Servicing Fee with respect to
each Specially Serviced Mortgage Loan and REO Loan (other than any Non-Serviced
Mortgage Loan and any successor REO Loan) with respect to which it is
responsible for servicing hereunder. As to each Specially Serviced Mortgage Loan
and REO Loan (other than any Non-Serviced Mortgage Loan and any successor REO
Loan), the Special Servicing Fee shall accrue from time to time at the Special
Servicing Fee Rate and shall be computed on the basis of the Stated Principal
Balance of such Specially Serviced Mortgage Loan and a 360 day year consisting
of twelve 30-day months and, in connection with any partial month interest
payment, for the same period respecting which any related interest payment due
on such Specially Serviced Mortgage Loan or deemed to be due on such REO Loan is
computed. The Special Servicing Fee with respect to any Specially Serviced
Mortgage Loan or REO Loan shall cease to accrue if a Liquidation Event occurs in
respect thereof. The Special Servicing Fee shall be payable monthly, on a
loan-by-loan basis, to the extent permitted by Section 3.05(a) and Section
3.05(e). The right to receive the Special Servicing Fee 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.
The Special Servicer shall be entitled to retain (subject, with
respect to any Serviced Whole Loan, to the terms of the related Co-Lender
Agreement), and shall not be required to deposit in the Certificate Account
pursuant to Section 3.04(a) or the applicable Serviced Whole Loan Custodial
Account pursuant to Section 3.04(e), additional servicing compensation in the
form of:
(i) 50% of all assumption fees (other than with respect to transfers
of tenant-in-common interests processed by it, in which case it will
retain 100% of such fees, and other than with respect to initial
syndications of tenant-in-common interests processed by the applicable
Servicer, in which case it will retain 0%) and 100% of all modification,
consent, transfer, waiver, earnout, modification application fees, other
application and processing fees and extension fees received on or with
respect to the Mortgage Loans that are not Specially Serviced Mortgage
Loans (other than any Non-Serviced Mortgage Loan and any successor REO
Loan), to the extent that (A) such fees are paid by the Mortgagor on such
Mortgage Loans that are not Specially Serviced Mortgage Loans; (B) all
amounts then due and payable with respect to the related Mortgage Loan
have been paid (including those payable to the Servicer pursuant to
Section 3.11(a)); and (C) with respect to any modification, consent,
waiver, earnout, modification application fees, other application and
processing fees and similar fees, the Special Servicer, and not the
Servicer, has performed the related modification, consent, waiver or
similar action, as applicable, in accordance with this Agreement; and
(ii) all assumption, assumption application, extension,
modification, consent, waiver and earnout fees, and charges for
beneficiary statements or demands, received on or with respect to any
Specially Serviced Mortgage Loan or REO Loan with respect to which it is
responsible for servicing hereunder, but only to the extent actually
collected from the related Mortgagor and only to the extent that all
amounts then due and payable with respect to the related Mortgage Loan
(including those payable to the Servicer pursuant to Section 3.11(a)) have
been paid;
in each case, only to the extent actually collected from the related Mortgagor
and only to the extent that all amounts then due and payable with respect to the
related Mortgage Loan (including those payable to the Servicer pursuant to
Section 3.11(a)) have been paid.
The Special Servicer shall also be entitled to additional servicing
compensation in the form of a Workout Fee with respect to each Corrected
Mortgage Loan which relates to a Specially Serviced Mortgage Loan that the
Servicer is responsible for servicing hereunder at the Workout Fee Rate on such
Mortgage Loan or Serviced Companion Loan for so long as it remains a Corrected
Mortgage Loan (provided that the Servicer may verify that the related
Mortgagor's payments, if paid by check, are honored by the bank upon which it
was drawn prior to paying the Workout Fee). The Workout Fee with respect to any
such Corrected Mortgage Loan shall cease to be payable if such Mortgage Loan or
Serviced Companion Loan again becomes a Specially Serviced Mortgage Loan;
provided that a new Workout Fee shall become payable if and when such Mortgage
Loan or Serviced Companion Loan again becomes a Corrected Mortgage Loan.
If the Special Servicer is terminated or resigns, it shall retain
the right to receive any and all Workout Fees payable in respect of Mortgage
Loans or Serviced Companion Loans that (i) became Corrected Mortgage Loans prior
to the time of that termination or resignation or (ii) as to which the Special
Servicer resolved the circumstances and/or conditions causing such Mortgage Loan
or Serviced Companion Loan to be a Specially Serviced Loan, except that the
requirement for three consecutive full and timely payments had not been
satisfied as of the date of such termination or resignation but is subsequently
satisfied and such Mortgage Loan otherwise meets the requirements as a Corrected
Mortgage Loan. The successor special servicer will not be entitled to any
portion of such Workout Fees.
A Liquidation Fee will be payable with respect to each Specially
Serviced Mortgage Loan as to which the Special Servicer receives any Liquidation
Proceeds subject to the exceptions set forth in the definition of Liquidation
Fee. A Liquidation Fee will also be payable with respect to each Mortgage Loan
that the related Mortgage Loan Seller has repurchased after the expiration of
the applicable time period provided for in the first sentence of Section
2.03(b). Notwithstanding anything to the contrary described above, no
Liquidation Fee will be payable based on, or out of, Liquidation Proceeds
received in connection with the purchase of (i) any Defaulted Mortgage Loan by
the Directing Certificateholder or the Special Servicer pursuant to Section
3.18(c), (ii) a Mortgage Loan included in a Serviced Whole Loan by a holder of a
related Serviced B Note pursuant to the related Co-Lender Agreement (unless the
related Mortgage Loan is purchased by the holder of the related Serviced B Note
more than 60 days after the date the purchase option becomes exercisable, to the
extent provided in the related Co-Lender Agreement; provided, however, that such
Liquidation Fee described in this clause (ii) shall in all circumstances be
payable by the holder of the related Serviced B Note and shall not, under any
circumstances, be payable out of the Trust); (iii) all of the Mortgage Loans and
REO Properties in connection with an optional termination of the Trust Fund
pursuant to Section 9.01 or (iv) a Mortgage Loan by a related mezzanine lender
pursuant to the related intercreditor agreement (unless (A) such Liquidation Fee
is not specifically prohibited under the related mezzanine intercreditor
agreement (provided that any future permitted mezzanine debt will require the
payment of a Liquidation Fee, to the extent not prohibited by the related
Mortgage Loan documents if the Mortgage Loan is not purchased within 60 days of
the date on which the related Purchase Option becomes exercisable) and (B) the
related Mortgage Loan is purchased by the related mezzanine lender more than 60
days after the date the related purchase option becomes exercisable; provided,
however, that such Liquidation Fee shall in all circumstances be payable by the
related mezzanine lender and shall not, under any circumstances, be payable out
of the Trust). If, however, Liquidation Proceeds are received with respect to
any Corrected Mortgage Loan and the Special Servicer is properly entitled to a
Workout Fee, such Workout Fee will be payable based on and out of the portion of
such Liquidation Proceeds that constitute principal and/or interest on such
Mortgage Loan or Serviced Whole Loan. Notwithstanding anything herein to the
contrary, the Special Servicer shall only be entitled to receive a Liquidation
Fee or a Workout Fee, but not both, with respect to proceeds on any Corrected
Mortgage Loan. In the event that (i) the Special Servicer has been terminated,
and (ii) either prior or subsequent to such termination, either (A) a Specially
Serviced Mortgage Loan was liquidated or modified pursuant to an action plan
submitted by the initial Special Servicer and approved (or deemed approved) by
the Directing Certificateholder, or (B) a Specially Serviced Mortgage Loan being
monitored by the Special Servicer subsequently became a Corrected Mortgage Loan,
then in either such event the Special Servicer shall be paid the related Workout
Fee or Liquidation Fee, as applicable, and the successor Special Servicer will
not be entitled to any portion of such Workout Fee or Liquidation Fee.
The Special Servicer will also be entitled to additional fees in the
form of Penalty Charges on Specially Serviced Mortgage Loans it is responsible
for servicing hereunder that accrued during such time as such Mortgage Loan or
Serviced Whole Loan was a Specially Serviced Mortgage Loan, but only to the
extent actually paid by the related Mortgagor and to the extent that all amounts
then due and payable with respect to the related Mortgage Loan (including
interest on Advances) have been paid and are not needed to first, (x) reimburse
the Trust Fund for additional Trust Fund expenses (other than Special Servicing
Fees, Workout Fees and Liquidation Fees) paid in connection with such Mortgage
Loan since the prior Determination Date and (y) reimburse interest on Advances
paid to the Servicer or Trustee, as applicable, that accrued with respect to the
related Mortgage Loan since the prior Determination Date. The Special Servicer
shall be required to pay out of its own funds all expenses incurred by it in
connection with its servicing activities hereunder (including, without
limitation, payment of any amounts, other than management fees in respect of REO
Properties, due and owing to any of its Sub-Servicers and the premiums for any
blanket Insurance Policy obtained by it insuring against hazard losses pursuant
to Section 3.07), if and to the extent such expenses are not expressly payable
directly out of the Certificate Account (or if a Serviced Whole Loan is
involved, first out of the applicable Serviced Whole Loan Custodial Account and
then out of the Certificate Account) or the applicable REO Account or as a
Servicing Advance, and the Special Servicer shall not be entitled to
reimbursement therefor except as expressly provided in this Agreement.
(c) In determining the compensation of the Servicers or Special
Servicer, as applicable, with respect to Penalty Charges, on any Determination
Date, the aggregate Penalty Charges collected on any Mortgage Loan since the
prior Determination Date shall be applied to pay (i) the applicable Servicer,
the Special Servicer or the Trustee for interest on Advances with respect to
such related Mortgage Loan, that accrued since the prior Determination Date and
(ii) the Trust Fund for any additional Trust Fund expenses with respect to such
Mortgage Loan (other than Special Servicing Fees, Workout Fees and Liquidation
Fees) paid since the prior Determination Date and not previously paid out of
Penalty Charges, and any Penalty Charges remaining thereafter shall be
distributed pro rata to the applicable Servicer and the Special Servicer based
upon the amount of Penalty Charges such Servicer or the Special Servicer would
otherwise have been entitled to receive during such period with respect to such
Mortgage Loan without any such application. With respect to the Non-Serviced
Mortgage Loans or any related REO Property, the Special Servicer shall not be
entitled to any Special Servicing Fees, Workout Fees or Liquidation Fees.
Section 3.12 Inspections; Collection of Financial Statements;
Delivery of Certain Reports.
(a) The Servicers shall perform (at their own expense), or shall
cause to be performed (at their own expense), a physical inspection of each
Mortgaged Property securing a Mortgage Note (other than with respect to a
Non-Serviced Mortgage Loan) with a Stated Principal Balance (or allocated loan
amount) of (a) $2,000,000 or more, at least once every 12 months and (b) less
than $2,000,000, at least once every 24 months, in each case commencing in the
calendar year 2008; provided, however, that if any scheduled payment becomes
more than 60 days delinquent on the related Mortgage Loan, the Special Servicer
shall inspect or cause to be inspected the related Mortgaged Property as soon as
practicable (but in no event more than 60 days) after such Mortgage Loan becomes
a Specially Serviced Mortgage Loan and annually thereafter for so long as such
Mortgage Loan remains a Specially Serviced Mortgage Loan; provided, further,
that the Servicers shall not be required to perform or cause to be performed an
inspection on a Mortgaged Property if such Mortgaged Property has been inspected
by the applicable Servicer or the Special Servicer within the preceding 12
months and such Servicer has no actual knowledge of, or notice of, an event
subsequent to the date of such inspection that would materially affect the
validity of such inspection. In addition, with respect to each Specially
Serviced Mortgage Loan, the Special Servicer shall inspect the related Mortgaged
Property as soon as practicable after the Debt Service Coverage Ratio for such
Mortgage Loan falls below 1.0x. The cost of each such inspection by the Special
Servicer shall be paid by the Servicer as a Servicing Advance; provided,
however, that if such Advance would be a Nonrecoverable Advance, then the cost
of such inspections shall be an expense of the Trust Fund (and if a Serviced
Whole Loan is involved, an expense of the holders of any related Serviced
Companion Loan), which expense shall first be reimbursed to the Trust Fund (and
if a Serviced Whole Loan is involved, the holders of any related Serviced
Companion Loan) from Penalty Charges collected by the Special Servicer on such
Specially Serviced Mortgage Loan. The Special Servicer or the respective
Servicer, as applicable, shall prepare or cause to be prepared a written report
of each such inspection detailing the condition of the Mortgaged Property and
specifying the existence of (i) any vacancy in the Mortgaged Property that the
preparer of such report deems material, (ii) any sale, transfer or abandonment
of the Mortgaged Property of which it has actual knowledge, (iii) any adverse
change in the condition of the Mortgaged Property that the preparer of such
report deems material, (iv) any visible material waste committed on the
Mortgaged Property and (v) photographs of each inspected Mortgaged Property. The
Special Servicer and the applicable Servicer shall deliver a copy of each such
report prepared by the Special Servicer and such Servicer, respectively, to the
other, and, upon request, to the Trustee within 30 days of the preparation of
such report. Upon request, the Trustee shall deliver a copy of each such report
to each Holder of a Class L, Class M, Class N, Class O, Class P, Class Q and
Class T Certificate at such Holder's expense (which such request may state that
such items be delivered until further notice).
(b) The Special Servicer, in the case of any Specially Serviced
Mortgage Loan, and the Servicers (in the case of any non-Specially Serviced
Mortgage Loan, other than the Non-Serviced Mortgage Loans) shall make reasonable
efforts to collect promptly from each related Mortgagor quarterly and annual
operating statements, budgets and rent rolls of the related Mortgaged Property,
and the quarterly and annual financial statements of such Mortgagor, whether or
not delivery of such items is required pursuant to the terms of the related
Mortgage, and each of the Servicers and Special Servicer, as applicable, shall
use reasonable efforts consistent with the Servicing Standard to enforce all
provisions of the loan documents relating to the submission of financial and
property information. 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 and shall collect all such items promptly
following their preparation. The Special Servicer shall deliver copies of all
the foregoing items so collected or prepared to the applicable Servicer within
30 days after its receipt thereof. The Servicers and the Special Servicer shall
each, upon request, deliver copies of all the foregoing items so collected by it
to each other, and upon request, the Trustee, the Depositor, the Underwriters,
the Rating Agencies, the holder of a Serviced Companion Loan and the Mortgage
Loan Sellers, in each case within 45 days of its receipt thereof. The Trustee
shall, upon written request and to the extent received, deliver copies of the
foregoing items to the Controlling Class Certificateholders or, to the extent
the Certificate Registrar has confirmed the Ownership Interest in Certificates
held thereby, any Certificate Owner, a copy (or image in suitable electronic
media) of each such item prepared by the Servicer or the Special Servicer.
Beginning in September 2007 for quarter-end June 2007 (or,
commencing in 2008 for any annual operating statement), within 45 days after
receipt by the Servicers of any annual or quarterly operating statements or rent
rolls with respect to any Mortgaged Property other than a Mortgaged Property
securing a Specially Serviced Mortgage Loan (with respect to Servicer No. 2) or
a Non-Serviced Mortgage Loan or an REO Property and, with respect to the
Mortgage Loan serviced by Servicer No. 2, within 45 days after receipt by the
Special Servicer of any annual operating statements or rent rolls with respect
to a Mortgaged Property securing such Specially Serviced Mortgage Loan or REO
Property the applicable Servicer or the Special Servicer, as applicable, shall,
based upon such operating statements or rent rolls received, prepare (or, if
previously prepared, update) the CMSA Operating Statement Analysis Report and
the CMSA NOI Adjustment Worksheet; provided that with respect to each Mortgaged
Property securing a Specially Serviced Mortgage Loan and REO Property, the
Special Servicer shall have delivered to Servicer No. 1 all information in its
possession necessary for such Servicer to prepare such report and worksheet. All
CMSA Operating Statements Analysis Reports shall be maintained by the applicable
Servicer with respect to each Mortgaged Property other than a Mortgaged Property
securing a Specially Serviced Mortgage Loan (with respect to Servicer No. 2) or
a Non-Serviced Mortgage Loan or REO Property and by the Special Servicer with
respect to any Mortgaged Property securing a Specially Serviced Mortgage Loan or
REO Property related to the Mortgage Loan serviced by Servicer No. 2, and the
Servicer or Special Servicer, as applicable, shall forward copies thereof (in
each case, promptly following the initial preparation and each material revision
thereof) to the Trustee, the Servicer or the Special Servicer, as applicable,
and upon request, the Underwriters, the Rating Agencies and the Mortgage Loan
Sellers together with the related operating statements or rent rolls. The
Trustee shall, upon written request and to the extent such items have been
delivered to the Trustee by the Servicer or the Special Servicer, as applicable,
deliver to any Certificateholder or, to the extent the Certificate Registrar has
confirmed the Ownership Interest in the Certificates held thereby, any
Certificate Owner, a copy of such CMSA Operating Statement Analysis Report (or
update thereof) and the related operating statement or rent rolls. The Special
Servicer shall cooperate with the applicable Servicer in connection with the
preparation of CMSA Operating Statement Analysis and CMSA NOI Adjustment
Worksheet, including delivery of the related data fields, and if requested by
the applicable Servicer, will prepare such reports with respect to each
Mortgaged Property securing a Specially Serviced Mortgage Loan or REO Property.
(c) At or before 12:00 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 applicable Servicer the CMSA
Special Servicer Loan File (or such related data fields as are reasonably agreed
to by such Servicer and the Special Servicer) with respect to the Specially
Serviced Mortgage Loans and any REO Properties, providing the information
required of the Special Servicer in an electronic format, reasonably acceptable
to such Servicer as of such Determination Date.
(d) (A) Not later than 4:00 p.m. (New York City time) on the first
Business Day before each Distribution Date with respect to clauses (i), (ii),
(iii), (iv), (v), (vii), (viii), (ix), (x) and (xi) in this Section 3.12(d) and
(B) not later than 3:00 p.m. (New York City time) on the second Business Day
before each Distribution Date with respect to clause (vi) in this Section
3.12(d), the Servicers shall prepare and deliver or cause to be delivered to the
Trustee the following reports and data files: the most recent (i) CMSA
Delinquent Loan Status Report, (ii) CMSA Total Loan Report, (iii) CMSA
Historical Loan Modification and Corrected Mortgage Loan Report (iv) CMSA REO
Status Report, (v) CMSA Property File, (vi) CMSA Loan Periodic Update File,
(vii) CMSA Financial File, (viii) CMSA Comparative Financial Status Report, (ix)
CMSA Loan Level Reserve LOC Report, (x) CMSA Servicer Watch List report and (xi)
CMSA Advance Recovery Report, to the extent that the most recent CMSA Special
Servicer Loan File has been received from the Special Servicer at the time
required pursuant to Section 3.12(c). All of the foregoing reports shall contain
information that is current as of such Determination Date; provided, however,
that notwithstanding anything to the contrary in Sections 3.12(c) or 3.12(d),
neither the Servicers nor the Special Servicer shall be required to prepare or
deliver any of the files or reports comprising the CMSA Investor Reporting
Package (other than the CMSA Loan Periodic Update File) before the first
Business Day after the third Determination Date following the Closing Date, and
the Trustee shall not be obligated to deliver any such report until provided by
Servicer. Such information may be delivered by the Servicers to the Trustee in
such electronic or other form as may be reasonably acceptable to the Trustee and
the Servicer. The Special Servicer shall from time to time (and, in any event,
as may be reasonably required by the Servicers) provide the Servicers with such
information in its possession regarding the Specially Serviced Mortgage Loans
and REO Properties as may be necessary for the applicable Servicer to prepare
each report and any supplemental information the Servicers are required to
provide hereunder to the Trustee. Such information may be delivered by the
Special Servicer to the Servicers in such electronic or other form as may be
reasonably acceptable to the Special Servicer and the Servicers.
(e) The Special Servicer shall deliver to the applicable Servicer
the items or reports set forth in Section 3.12(b) and Section 3.12(c), and the
Servicers shall deliver to the Trustee the reports set forth in Section 3.12(b)
and Section 3.12(d), in an electronic format (to the extent such report is
prepared by the Servicer and not forwarded by the applicable Mortgagor)
reasonably acceptable to the Special Servicer, the Trustee and the Servicer. The
Servicers may, absent manifest error, conclusively rely on the reports to be
provided by the Special Servicer pursuant to Sections 3.12(b) and 3.12(c). The
Trustee may, absent manifest error, conclusively rely on the reports to be
provided by the Servicers pursuant to Section 3.12(b) and Section 3.12(d).
Absent manifest error of which it has actual knowledge, none of the Servicers,
the Special Servicer or the Trustee shall be responsible for the accuracy or
completeness of any information supplied to it by a Mortgagor, the Depositor
(including information in the Prospectus Supplement), a Mortgage Loan Seller or
a third party that is included in any reports, statements, materials or
information prepared or provided by the Servicers, the Special Servicer or the
Trustee, as applicable, pursuant to this Agreement. None of the Trustee, the
Servicers or the Special Servicer shall have any obligation to verify the
accuracy or completeness of any information provided by a Mortgagor, a Mortgage
Loan Seller, a third party or each other.
In the case of information or reports to be furnished by the
Servicers to the Trustee pursuant to Section 3.12(b), Section 3.12(d) and
Section 4.02, 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 information or
reports are to be prepared and delivered by the Special Servicer pursuant to
Section 3.12(b) or Section 3.12(c) the Servicers shall have no obligation to
provide such information or reports to the Trustee until it has received the
requisite information or reports from the Special Servicer, and the Servicers
shall not be in default hereunder due to a delay in providing the information or
reports required by Section 3.12(b), Section 3.12(d) of Section 4.02 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) of this Agreement, except that
the Servicer shall be responsible for timely providing all reports and data
other than the information or reports to be supplied solely by the Special
Servicer.
In the case of information or reports to be furnished by the
Servicers to the Trustee pursuant to Section 3.12(b), Section 3.12(d) and
Section 4.02, to the extent that such information or reports are, in turn, based
on information or reports to be provided by the related Non-Serviced Mortgage
Loan Servicer pursuant to the related Non-Serviced Mortgage Loan Pooling and
Servicing Agreement and to the extent that such information or reports are to be
prepared and delivered by the related Non-Serviced Mortgage Loan Servicer
pursuant to the related Non-Serviced Mortgage Loan Pooling and Servicing
Agreement, the Servicer shall have no obligation to provide such information or
reports to the Trustee until it has received the requisite information or
reports from such Non-Serviced Mortgage Loan Servicer, and the Servicer shall
not be in default hereunder due to a delay in providing the information or
reports required by Section 3.12(b), Section 3.12(d) or Section 4.02 caused by
the related Non-Serviced Mortgage Loan Servicer's failure to timely provide any
information or report required under the related Non-Serviced Mortgage Loan
Pooling and Servicing Agreement, except that the Servicer shall be responsible
for timely providing all reports and data other than the information or reports
to be supplied solely by the related Non-Serviced Mortgage Loan Servicer.
(f) Notwithstanding the foregoing, however, the failure of the
Servicers or Special Servicer to disclose any information otherwise required to
be disclosed by this Section 3.12 or Section 4.02 shall not constitute a breach
of this Section 3.12 or Section 4.02 to the extent the Servicers or Special
Servicer so fails because such disclosure, in the reasonable belief of the
Servicers 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 Mortgage Loans or Mortgaged Properties. The
Servicers 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 and the Servicing Standard. The Servicers 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) and may require from the receiving Person a
confidentiality and indemnification agreement.
(g) If the Servicers or the Special Servicer is required to deliver
any statement, report or information under any provision of this Agreement, the
Servicers 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 applicable Servicer's or the Special Servicer's
internet website, unless this Agreement specifies a method of delivery; provided
that any items required to be delivered to the Trustee shall be delivered in the
manner provided in clause (x) or (y) above. Each of the Servicers and the
Special Servicer shall either (i) furnish to the Underwriters or (ii) make
available to the Underwriters on the applicable Servicer's or Special Servicer's
internet website (the method of providing such information to be selected by
each Servicer or the Special Servicer, as applicable, at its option) all reports
required to be provided to holders of the Certificates compiled by either of
them, as applicable, pursuant to this Agreement if and as requested in writing
by the Underwriters under the same terms and conditions applicable to holders of
the Certificates.
(h) The Servicers shall, with the reasonable cooperation of the
Special Servicer, prepare and file information returns with respect to reports
of foreclosures and abandonments of any Mortgaged Property and the information
returns relating to any Mortgaged Property securing a Mortgage Loan and, if
applicable, or Serviced Companion Loan required by Sections 6050J and 6050P of
the Code and each year deliver to the Trustee an Officer's Certificate stating
that such reports have been filed. Such reports shall be in form and substance
sufficient to meet the reporting requirements imposed by Sections 6050J and
6050P of the Code.
Section 3.13 Reserved.
Section 3.14 Reserved.
Section 3.15 Access to Certain Information.
Each of the Servicers and the Special Servicer upon request of the
Trustee shall provide or cause to be provided through the Trustee to any
Certificateholder or Certificate Owner or holder of any Serviced Companion Loan
that is, or is affiliated with, a federally insured financial institution, the
Trustee, the Depositor, each Mortgage Loan Seller, each Rating Agency, to the
Servicers, or to the Special Servicer, as applicable, and to the OTS, the FDIC,
the Federal Reserve Board and the supervisory agents and examiners of such
boards and such corporations, and any other federal or state banking or
insurance regulatory authority that may exercise authority over any
Certificateholder or holder of any Serviced Companion Loan, and to each Holder
of a Class L, Class M, Class N, Class O, Class P, Class Q or Class T Certificate
or holder of any Serviced Companion Loan access to any documentation regarding
the Mortgage Loans or Serviced Whole Loans and the Trust Fund within its control
which may be required by this Agreement or by applicable law. Such access shall
be afforded without charge but upon reasonable prior written request via e-mail
or facsimile (where such form of transmission is reasonably practicable) and
during normal business hours at the offices of the Trustee or the Servicer,
designated by it; provided, however, that Certificateholders, Certificate Owners
and holder of any Serviced Companion Loan shall be required to pay their own
photocopying costs and execute a reasonable and customary confidentiality
agreement with respect to such information substantially in the form of Exhibit
J-1, J-2 or J-3. The failure of either 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 Servicers and
the Special Servicer may each deny any of the foregoing persons access to
confidential information or any intellectual property which the Servicers or the
Special Servicer is restricted by license or contract from disclosing.
Notwithstanding the foregoing, the Servicers and the Special Servicer shall make
available to the foregoing persons documentation regarding the Mortgage Loans
and Serviced Whole Loans that is not confidential, at the reasonable judgment of
the Servicers or Special Servicer, as the case may be, without requiring such
person to execute a confidentiality agreement and may make available
non-confidential information and documentation to any other person within the
discretion of the Servicers or Special Servicer.
Section 3.16 Title to REO Property; REO Accounts.
(a) If title to any REO Property is acquired, the deed or
certificate of sale shall be issued to the Trustee or a nominee thereof on
behalf of the Certificateholders and the Special Servicer, on behalf of the
Trust Fund (and, in the case of any Serviced Whole Loan, also on behalf of the
holders of any related Serviced Companion Loan), shall sell any REO Property as
soon as commercially reasonable subject to the Servicing Standard, but in any
event prior to the close of the third calendar year following the year in which
the Trust Fund (and if applicable, the holders of any related Serviced Companion
Loan) acquires ownership of such REO Property, within the meaning of Treasury
Regulations Section 1.856-6(b)(1), for purposes of Section 860G(a)(8) of the
Code, unless the Special Servicer either (i) is granted an extension of time (an
"REO Extension") by the Internal Revenue Service to sell such REO Property or
(ii) obtains for the Trustee, and the Servicer an Opinion of Counsel, addressed
to the Trustee, and the Servicer, to the effect that the holding by the Trust
Fund of such REO Property subsequent to the close of the third calendar year
following the year in which such acquisition occurred will not result in the
imposition of taxes on "prohibited transactions" of the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC constituted thereby as defined in
Section 860F of the Code or cause the Lower-Tier REMIC or the Upper-Tier REMIC
to fail to qualify as a REMIC at any time that any Uncertificated Lower-Tier
Interests or Certificates are outstanding. If the Special Servicer is granted
the REO Extension contemplated by clause (i) of the immediately preceding
sentence or obtains the Opinion of Counsel contemplated by clause (ii) of the
immediately preceding sentence, the Special Servicer shall sell such REO
Property within such longer period as is permitted by such REO Extension or such
Opinion of Counsel, as the case may be. Any expense incurred by the Special
Servicer in connection with its being granted the REO Extension contemplated by
clause (i) of the second preceding sentence or its obtaining the Opinion of
Counsel contemplated by clause (ii) of the second preceding sentence, shall be
an expense of the Trust Fund payable out of the Certificate Account pursuant to
Section 3.05(a) (or if a Serviced Whole Loan is involved first out of, the
applicable Serviced Whole Loan Custodial Account pursuant to Section 3.05(e) and
out of the Certificate Account pursuant to Section 3.05(a)).
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any REO Property separate and apart
from its own funds and general assets. If an REO Acquisition shall occur, the
Special Servicer shall establish and maintain one or more Pool REO Accounts,
held on behalf of the Trustee in trust for the benefit of the Certificateholders
and the Trustee (as holder of the Uncertificated Lower-Tier Interests) 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 an REO Account solely
with respect to such property (a "Whole Loan REO Account"), to be held for the
benefit of the Certificateholders and the holder of any related Serviced
Companion Loan. Each REO Account shall be an Eligible Account. The Special
Servicer shall deposit, or cause to be deposited, in the related REO Account,
within one Business Day after receipt, all REO Revenues, Insurance Proceeds and
Condemnation Proceeds and Liquidation Proceeds (net of all Liquidation Expenses)
received in respect of an REO Property into the related REO Account. Funds in an
REO Account may be invested in Permitted Investments in accordance with Section
3.06. The Special Servicer shall give notice to the Trustee and the applicable
Servicer (and if a Serviced Whole Loan is involved and if such notice is
required under the related Co-Lender Agreement, the related holder of a Serviced
Companion Loan) of the location of an REO Account when first established and of
the new location of an REO Account prior to any change thereof.
(c) The Special Servicer shall withdraw from the related REO Account
funds necessary for the proper operation, management, insuring, leasing,
maintenance and disposition of any REO Property, but only to the extent of
amounts on deposit in the applicable REO Account relating to such REO Property.
On each Determination Date, the Special Servicer shall withdraw from each REO
Account and deposit into the Certificate Account or the applicable Serviced
Whole Loan Custodial Account, as applicable, the aggregate of all amounts
received in respect of each REO Property on or prior to such Determination Date,
net of (i) any withdrawals made out of such amounts pursuant to the preceding
sentence and (ii) Net Investment Earnings on amounts on deposit in such REO
Account; provided, however, that the Special Servicer may retain in such REO
Account, in accordance with the Servicing Standard, such portion of such balance
as may be necessary to maintain a reasonable reserve for repairs, replacements,
leasing, management and tenant improvements and other related expenses for the
related REO Property. For purposes of the foregoing, the Pool REO Account and a
Whole Loan REO Account correspond to the Certificate Account and the related
Serviced Whole Loan Custodial Account, respectively. In addition, on each
Determination Date, the Special Servicer shall provide the applicable Servicer
with a written accounting of amounts deposited in the Certificate Account or the
Serviced Whole Loan Custodial Account, as applicable, on such date.
(d) The Special Servicer shall keep and maintain separate records,
on a property-by-property basis, for the purpose of accounting for all deposits
to, and withdrawals from, an REO Account pursuant to Section 3.16(b) or (c).
Section 3.17 Management of REO Property.
(a) If title to any REO Property is acquired, the Special Servicer
shall cause such REO Property to be managed, conserved, protected, operated and
leased for the benefit of the Certificateholders and the Trustee (as holder of
the Uncertificated Lower-Tier Interests, the Class A-MFL Regular Interest and
the Class A-JFL Regular Interest) (and, in the case of any Serviced Whole Loan,
also for the benefit of the holders of any related Serviced Companion Loan (as a
collective whole)) 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 or result in an
Adverse REMIC Event. 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 the Trustee (as holder of the Uncertificated Lower-Tier
Interests, the Class A-MFL Regular Interest and the Class A-JFL Regular
Interest) and, if a Serviced Whole Loan is involved, also for the benefit of the
holders of any related Serviced Companion Loan (as a collective whole) (as
determined by the Special Servicer in its good faith and reasonable judgment in
accordance with the Servicing Standard). Subject to this Section 3.17, the
Special Servicer may allow the Trust Fund to earn "net income from foreclosure
property" within the meaning of Code Section 860G(c) if it determines that
earning such income is in the best interests of Certificateholders 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 one Business Day following receipt of such funds) in the applicable REO
Account all revenues received by it with respect to each 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 REO Property are insufficient for the purposes set forth in clauses
(i)-(iv) above with respect to such REO Property, the applicable Servicer shall
advance from its own funds such amount as is necessary for such purposes unless
(as evidenced by an Officer's Certificate delivered to the Trustee and the
Depositor) such advances would, if made, constitute Nonrecoverable Servicing
Advances in which case, such Servicer shall make such payment from amounts held
in the Certificate Account (or if a Serviced Whole Loan is involved, first out
of the applicable Serviced Whole Loan Custodial Account and then out of the
Certificate Account) if directed to do so by the Special Servicer. The Special
Servicer shall direct the applicable Servicer to make such payment if it is
necessary to preserve the related Mortgaged Property and the payment of such
amount would be in the best interest of the Certificateholders and in the case
of any Serviced Whole Loan, the holders of any related Serviced Companion Loan
(as a collective whole, taking into consideration that the Serviced B Note is
subordinate to the related Mortgage Loan and Serviced Pari Passu Loan). The
Special Servicer shall give the applicable Servicer and the Trustee not less
than five Business Days' notice, together with all information reasonably
requested by such Servicer (upon which such Servicer may conclusively rely) and
available to the Special Servicer before the date on which such Servicer is
requested to make any Servicing Advance with respect to an REO Property;
provided, however, that only three Business Days' notice shall be required in
respect of Servicing Advances required to be made on an urgent or emergency
basis (which may include, without limitation, Servicing Advances required to
make tax or insurance payments).
(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, 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 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 Mortgage Loan or
Serviced Whole 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 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 applicable 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 may, and to the extent necessary to (i)
preserve the status of the REO Property as "foreclosure property" under the
REMIC Provisions or (ii) avoid the imposition of a tax on "income from
nonpermitted assets" within the meaning of the REMIC Provisions shall, contract
with any Independent Contractor for the operation and management of any REO
Property within 30 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
Mortgaged 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 subsection (a)
hereof, 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.
(d) When and as necessary, the Special Servicer shall send to the
Trustee and the applicable 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 in accordance with Sections 3.17(a) and
3.17(b).
Section 3.18 Sale of Defaulted Mortgage Loans and REO Properties.
(a) Each of the Servicers, the Special Servicer or the Trustee may
sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO
Property 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(b), Section 9.01, the related Mortgage Loan Documents and/or any related
Co-Lender Agreement or mezzanine intercreditor agreement(s) or, with respect to
the purchase of a Non-Serviced Mortgage Loan, the conditions set forth in the
related Non-Serviced Mortgage Loan Pooling Agreement.
(b) If any Mortgage Loan becomes a Defaulted Mortgage Loan, then the
Special Servicer shall promptly so notify in writing the Trustee, the applicable
Servicer and the Directing Certificateholder, and with respect to any Serviced
Companion Loan, any related holder of such Serviced Companion Loan(s). The
Special Servicer may, at its option, purchase any Defaulted Mortgage Loan out of
the Trust Fund at a cash price equal to the applicable Purchase Price. The
Special Servicer may, after receipt of the notice described in the first
sentence of this Section 3.18(b), assign its option under the preceding sentence
to any party (including, without limitation, in connection with a Mortgage Loan
that is part of a Serviced Whole Loan, any related holder of a Serviced
Companion Loan), other than to a Person whose purchase of such Defaulted
Mortgage Loan would violate the terms of any related Co-Lender Agreement or
mezzanine loan intercreditor agreement; provided that the Special Servicer, in
connection therewith, shall deliver to the Trustee and the Directing
Certificateholder a copy of the related written assignment executed by the
Special Servicer, provided, further, that with respect to any Mortgage Loan, the
option holder's rights under this Section 3.18(b) are subject to the rights of
the holder of the related B Note to purchase such Mortgage Loan pursuant to the
terms of a related Co-Lender Agreement or by a holder of a mezzanine loan
pursuant to the related mezzanine loan intercreditor agreement. The option with
respect to a Mortgage Loan shall terminate upon the purchase of such Mortgage
Loan by the holder of the related B Note pursuant to the related Co-Lender
Agreement or by a holder of a mezzanine loan pursuant to the related mezzanine
loan intercreditor agreement. The applicable Purchase Price for any Defaulted
Mortgage Loan purchased under this Section 3.18(b) shall be deposited into the
Certificate Account or the Serviced Whole Loan Custodial Account, as applicable,
and the Trustee, upon receipt of notice from the applicable Servicer to the
effect that such deposit has been made, shall release or cause to be released to
the Person effecting such purchase (or to its designee) 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 Person effecting such purchase (or its designee)
ownership of such Mortgage Loan. In connection with any such purchase, the
Special Servicer shall deliver the related Servicing File to the Person
effecting such purchase (or to its designee).
If not exercised sooner, such purchase option with respect to any
Mortgage Loan will automatically terminate upon (i) the related borrower's (or,
subject to the related Co-Lender Agreement, any holder of a related B Note) cure
of all defaults on the Defaulted Mortgage Loan, (ii) the acquisition on behalf
of the Trust of title to the related Mortgaged Property by foreclosure or deed
in lieu of foreclosure or (iii) the modification, waiver or pay-off (full or
discounted) of the Defaulted Mortgage Loan in connection with a workout.
The applicable Purchase Price for any Defaulted Mortgage Loan
purchased under this Section 3.18(b) shall, (i) pending determination of the
Fair Value thereof pursuant to the succeeding sentence, be the Purchase Price
calculated in accordance with the definition of Purchase Price, and (ii)
following determination of the Fair Value pursuant to the succeeding sentence,
be the Fair Value. The Special Servicer shall promptly obtain an Appraisal
(unless it has an Appraisal that is less than 12 months old and has no actual
knowledge of, or notice of, any event which in the Special Servicer's judgment
would materially affect the validity of such Appraisal), and shall, within 60
days following the date on which a Mortgage Loan becomes a Defaulted Mortgage
Loan, determine the fair value thereof in accordance with the Servicing Standard
(the "Fair Value"). In determining the Fair Value of any Defaulted Mortgage Loan
the Special Servicer shall take into account, among other factors, the period
and amount of the delinquency on such Mortgage 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 such Defaulted Mortgage Loan if the
Special Servicer were to pursue a workout or foreclosure strategy instead of
selling such Defaulted Mortgage Loan pursuant to the subject purchase option. In
addition, the Special Servicer shall refer to all relevant information contained
in the Servicing File, including the most recent Appraisal obtained or conducted
with respect to the related Mortgaged Property and available objective
third-party information obtained from generally available sources, as well as
information obtained from 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 based on the Appraisal. The Special Servicer must
give prompt written notice of its Fair Value determination to the Trustee, the
applicable Servicer and the Directing Certificateholder. With respect to a
Non-Serviced Mortgage Loan, Fair Value shall be determined pursuant to the
related Non-Serviced Mortgage Loan Pooling Agreement.
The Special Servicer shall be required to change from time to time
thereafter its determination of the Fair Value of a Defaulted Mortgage Loan
based upon changed circumstances, new information or otherwise, in accordance
with the Servicing Standard. If the most recent Fair Value calculation was made
more than 90 days prior to the exercise date of a purchase option (under this
Section 3.18(b) or Section 3.18(c)), then the Special Servicer shall confirm or
revise the Fair Value determination, which Fair Value may be higher or lower.
In the event that the Special Servicer or any affiliate of the
Special Servicer exercises the purchase option (under this Section 3.18(b) or
Section 3.18(c)) with respect to any Defaulted Mortgage Loan, including as the
Directing Certificateholder or as the assignee thereof, then the applicable
Servicer or, if such Servicer is also the Special Servicer or an affiliate of
the Special Servicer, the Trustee shall determine whether the Special Servicer's
determination of Fair Value for a Defaulted Mortgage Loan constitutes a fair
price in its reasonable judgment. In such event, the Special Servicer shall
promptly deliver to such Servicer or the Trustee, as applicable, in accordance
with the foregoing sentence, the most recent related Appraisal 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 is relevant to
the confirmation of the Special Servicer's determination of Fair Value,
including information regarding any change in circumstance regarding the
Defaulted Mortgage Loan known to the Special Servicer that has occurred
subsequent to, and that would materially affect the value of the related
Mortgaged Property reflected in, the most recent related Appraisal.
Notwithstanding the foregoing, the applicable Servicer or the Trustee, as the
case may be, may (at its option) designate an Independent Qualified Appraiser,
selected with reasonable care by the applicable Servicer or the Trustee, as the
case may be, to confirm that the Special Servicer's determination of Fair Value
is consistent with or greater than what the Independent Qualified Appraiser
considers to be the Fair Value of such Defaulted Mortgage Loan. In that event,
the applicable Servicer or Trustee, as applicable, will be entitled to rely upon
such Independent Qualified Appraiser's determination. Such Servicer or Trustee,
as applicable, shall be entitled to a fee of $2,500 in connection with each such
Fair Value determination. The costs and expenses of all third-party opinions of
value (including the expenses associated with the engagement of an Independent
Qualified Appraiser) and any Appraisals and inspection reports incurred by such
Servicer or Trustee, as the case may be, as contemplated by this paragraph shall
be advanced by such Servicer or Trustee, as the case may be, and will
constitute, and be reimbursable as, a Servicing Advance.
Unless and until the purchase option granted hereunder with respect
to a Defaulted Mortgage Loan is exercised, the Special Servicer will be required
to pursue such other resolution strategies available hereunder, including
workout and foreclosure, consistent with the Servicing Standard, but the Special
Servicer will not be permitted to sell the Defaulted Mortgage Loan other than
pursuant to the exercise of such purchase option or as otherwise permitted under
Section 3.18(a).
(c) If the Special Servicer or an assignee thereof has not purchased
any Defaulted Mortgage Loan as provided in Section 3.18(b) within 15 days of the
Special Servicer's having received notice of that the subject Mortgage Loan has
become a Defaulted Mortgage Loan pursuant to Section 3.18(b), then the Trustee
shall within five days of the end of such 15 day period send notice to the
Directing Certificateholder that such Mortgage Loan was not purchased by the
Special Servicer or its assignee, and the Directing Certificateholder may, at
its option, within 15 days after receipt of such notice, purchase (or designate
an Affiliate thereof to purchase) such Mortgage Loan out of the Trust Fund at a
cash price equal to the Purchase Price. In addition, if the Special Servicer or
an assignee thereof has not purchased any Defaulted Mortgage Loan provided in
Section 3.18(b) within 15 days of the Special Servicer's having received notice
of any calculation or updated calculation of Fair Value pursuant to Section
3.18(b), then the Trustee shall within five days of the end of such 15-day
period send notice to the Directing Certificateholder that such Mortgage Loan
was not purchased by the Special Servicer or its assignee, and the Directing
Certificateholder may, at its option, within 15 days after receipt of such
notice, purchase (or designate an Affiliate thereof to purchase) such Mortgage
Loan out of the Trust Fund at a cash price equal to the Fair Value. The cash
price paid for any such Mortgage Loan purchased under this Section 3.18(c) shall
be deposited into the Certificate Account or the Serviced Whole Loan Custodial
Account, as applicable, and the Trustee, upon receipt of written notice from the
applicable Servicer to the effect that such deposit has been made, shall release
or cause to be released to the Directing Certificateholder (or the designated
Affiliate thereof), as applicable, 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
Directing Certificateholder (or the designated Affiliate thereof), as
applicable, the ownership of such Mortgage Loan. Nothing in this Section 3.18(c)
shall be deemed to limit the ability of any holder of a Serviced Companion Loan
Holder to purchase the related Mortgage Loan in accordance with the related
Co-Lender Agreement.
(d) The Special Servicer shall use reasonable efforts to solicit
bids for each REO Property in such manner as will be reasonably likely to
realize a fair price as soon as reasonably possible and, in any event, within
the time period provided for by Section 3.16(a). Such solicitation shall be made
in a commercially reasonable manner. The Special Servicer shall accept the
highest cash bid received from any Person for such REO Property in an amount at
least equal to the Purchase Price therefor; provided, however, that in the
absence of any such bid, the Special Servicer shall accept the highest cash bid
received from any Person that is determined by the Special Servicer to be a fair
price for such REO Property. If the Special Servicer reasonably believes that it
will be unable to realize a fair price for any REO Property within the time
constraints imposed by Section 3.16(a), then the Special Servicer shall dispose
of such REO Property upon such terms and conditions as the Special Servicer
shall deem necessary and desirable to maximize the recovery thereon under the
circumstances and, in connection therewith, shall accept the highest outstanding
cash bid, regardless of from whom received. If the Special Servicer determines
with respect to any REO Property that the offers being made with respect thereto
are not in the best interests of the Certificateholders and, if the subject REO
Property relates to a Serviced Whole Loan, the related holder(s) of the Serviced
Companion Loans, as a collective whole, and that the end of the period referred
to in Section 3.16(a) with respect to such REO Property is approaching, the
Special Servicer shall seek an extension of such period in the manner described
in Section 3.16(a); provided, however, that the Special Servicer shall use its
best efforts, consistent with the Servicing Standard, to sell any REO Property
prior to three years prior to the Rated Final Distribution Date.
The Special Servicer shall give the Trustee, each Servicer and any
affected holder of a B Note not less than three Business Days' prior written
notice of its intention to sell any REO Property. No Interested Person shall be
obligated to submit a bid to purchase any REO Property, and notwithstanding
anything to the contrary herein, neither the Trustee, in its individual
capacity, nor any of its Affiliates may bid for or purchase any REO Property
pursuant hereto.
(e) Whether any cash bid constitutes a fair price for any REO
Property for purposes of Section 3.18(d), shall be determined by the Special
Servicer, if the highest bidder is a Person other than the Special Servicer or
an Affiliate thereof, and by the applicable Servicer, if the highest bidder is
the Special Servicer or an Affiliate thereof, or if the applicable Servicer is
also the Special Servicer or an Affiliate of the Special Servicer, by the
Trustee. In determining whether any bid received from the Special Servicer or an
Affiliate thereof represents a fair price for any REO Property, the applicable
Servicer or the Trustee, as applicable, shall obtain and may conclusively rely
on the opinion of an Appraiser (the fees and costs of which shall be covered by
a Servicing Advance by the applicable Servicer) retained by the applicable
Servicer or the Trustee, as the case may be. In determining whether any bid
constitutes a fair price for any REO Property, such Appraiser shall be
instructed to take into account, as applicable, among other factors, the
occupancy level and physical condition of the related Mortgaged Property and the
state of the local economy in the area where the REO Property is located. The
Purchase Price for any REO Property shall in all cases be deemed a fair price.
Subject to subsections (a) through (d) above, the Special Servicer
shall act on behalf of the Trustee and, in the case of any Serviced Whole Loan,
the related holder(s) of the Serviced Companion Loans(s), in negotiating and
taking any other action necessary or appropriate in connection with the sale of
any REO Property, and the collection of all amounts payable in connection
therewith. Any sale of any REO Property shall be final and without recourse to
the Trustee, the Trust Fund or any affected holder(s) of the Serviced Companion
Loans, and if such sale is consummated in accordance with the terms of this
Agreement, neither the Special Servicer nor any Servicer shall have any
liability to any Certificateholder and, with respect to any Serviced Whole Loan,
to any related holder(s) of the Serviced Companion Loans, with respect to the
purchase price therefor accepted by the Special Servicer or the applicable
Servicer.
(f) Any sale of any Defaulted Mortgage Loan or REO Property shall be
for cash only.
(g) The parties hereto acknowledge the purchase option of each
holder of a B Note with respect to the related Mortgage Loan provided for in the
related Intercreditor Agreement. The purchase price paid by any holder of a B
Note for the related Mortgage Loan in accordance with such purchase option shall
be deposited into the Certificate Account, and the Trustee, upon receipt of
written notice from the applicable Servicer to the effect that such deposit has
been made, 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 ownership of such Mortgage Loan in the related holder of a B
Note.
(h) If pursuant to any purchase option provided for in the related
intercreditor, co-lender or similar agreement, a holder of a mezzanine loan
purchases any Mortgage Loan, then the purchase price paid by such holder of a
mezzanine loan for such Mortgage Loan in accordance with such purchase option
shall be deposited into the Certificate Account, and the Trustee, upon receipt
of written notice from the applicable Servicer to the effect that such deposit
has been made, 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 ownership of such Mortgage Loan in such holder of a
mezzanine loan.
(i) With respect to each Serviced Whole Loan with a related Serviced
Companion Loan that has been included in an Other Securitization, upon the
related Mortgage Loan becoming a Defaulted Mortgage Loan, the Trustee shall
promptly notify, in writing, each holder of a related Serviced Companion Loan
(such notice shall include the option price for such Serviced Companion Loan as
determined by the Special Servicer based on the same methodology for determining
the fair value of the related Mortgage Loan) or if such Serviced Companion Loan
has been securitized, the applicable trustee under the Other Pooling and
Servicing Agreement (who shall be instructed to promptly notify, in writing, the
"controlling class representative" (as defined in the related Other Pooling and
Servicing Agreement) of that securitization or an analogous party). Upon receipt
of such notice, the related "controlling class representative" (as defined in
the related Other Pooling and Servicing Agreement) or analogous party shall have
the right, at its option, to purchase its respective Serviced Companion Loan
from the trust established pursuant to the related Other Pooling and Servicing
Agreement for a price determined by the Special Servicer in accordance with
Section 3.18 hereof, with respect to such Serviced Companion Loan. Such Purchase
Option shall otherwise be on the same terms as the Purchase Option provided to
the Controlling Class Option Holder in Section 3.18(a) mutatis mutandis.
Section 3.19 Additional Obligations of the Servicer.
(a) With respect to any Mortgage Loan (other than a Specially
Serviced Mortgage Loan and any Non-Serviced Mortgage Loan) that has been subject
to a Principal Prepayment and a Prepayment Interest Shortfall which occurs as a
result of the applicable Servicer's allowing the related Mortgagor to deviate
from the terms of the related Mortgage Loan documents regarding Principal
Prepayments, such Servicer shall deliver to the Trustee for deposit in the
Lower-Tier Distribution Account on each P&I Advance Date, without any right of
reimbursement therefor, a cash payment (a "Compensating Interest Payment"), in
an amount equal to the lesser of (x) any Prepayment Interest Shortfall incurred
in connection with such Principal Prepayment received in respect of such
Mortgage Loan on or prior to the related Determination Date and (y) the
aggregate of (A) that portion of its Servicing Fees with respect to such
Mortgage Loan for the related Due Period that is being paid in such period, and
(B) all Prepayment Interest Excess on the related Mortgage Loan; provided,
however, that the rights of the Certificateholders to offset of the aggregate
Prepayment Interest Shortfalls shall not be cumulative; provided, further, that
no Compensating Interest Payment will be required with respect to a prepayment
(i) that occurs as a result of the payment of Insurance Proceeds or Condemnation
Proceeds, (ii) that occurs subsequent to a default under the related Mortgage
Loan documents (provided, that the Special Servicer reasonably believes that
acceptance of such prepayment is consistent with the Servicing Standard), (iii)
that, pursuant to the related Mortgage Loan documents, the related Servicer has
no discretion to reject, (iv) pursuant to applicable law or a court order or (v)
accepted at the request of or with the consent of the Directing
Certificateholder.
(b) The Servicers shall, as to each Mortgage Loan (other than any
Non-Serviced Mortgage Loan) or Serviced Whole Loan which is secured by the
interest of the related Mortgagor under a Ground Lease, notify promptly (and in
any event within 60 days after the Closing Date) after the later of (i) the
Closing Date and (ii) the applicable Servicer's receipt of such Ground Lease,
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 such
Servicer.
Section 3.20 Modifications, Waivers, Amendments and Consents.
(a) Except as set forth in Section 3.02(a) and in this Section 3.20
but with respect to any Serviced Whole Loan, subject to the rights (if any) of
the related holder(s) of a Serviced Companion Loan to advise the applicable
Servicer with respect to, or consent to, a modification, waiver or amendment, to
the extent provided in the related Co-Lender Agreement, the Servicers shall not
agree to any modification, waiver or amendment of a Mortgage Loan or Serviced
Whole Loan.
Notwithstanding the foregoing, with respect to Mortgage Loans (other
than Non-Serviced Mortgage Loans) or any Serviced Whole Loan required to be
serviced by it hereunder that are not Specially Serviced Mortgage Loans, the
Servicers may, without receipt of written confirmation from the Rating Agencies
as to the ratings of the Certificates or any Serviced Companion Loan Securities
or the consent of the Special Servicer or the Directing Certificateholder:
(i) approve routine leasing activity (including any subordination,
standstill and attornment agreements) with respect to any lease for less
than the lesser of (a) 20,000 square feet and (b) 20% of the related
Mortgaged Property;
(ii) approve a change of the property manager at the request of the
related Mortgagor, provided, that (A) the successor property manager is
not affiliated with Mortgagor and is a nationally or regionally recognized
manager of similar properties, (B) the related Mortgage Loan does not have
an outstanding principal balance in excess of $5,000,000 and (C) the
subject Mortgaged Property does not secure a Serviced Companion Loan;
(iii) approve any waiver affecting the timing of receipt of
financial statements from any Mortgagor, provided, that, such financial
statements are delivered no less than quarterly and within 60 days of the
end of the calendar quarter;
(iv) approve annual budgets for the related Mortgaged Property,
provided, that no such budget (1) provides for the payment of operating
expenses in an amount equal to more than 110% of the amounts budgeted
therefor for the prior year or (2) provides for the payment of any
material expenses to any affiliate of the Mortgagor (other than the
payment of a management fee to any property manager if such management fee
is no more than the management fee in effect on the Cut-Off Date);
(v) subject to other restrictions herein regarding Principal
Prepayments, waive any provision of a Mortgage Loan requiring a specified
number of days notice prior to a Principal Prepayment;
(vi) approve modifications, consents or waivers in connection with a
defeasance permitted by the terms of the related Mortgage Loan if the
applicable Servicer receives an Opinion of Counsel (which Opinion of
Counsel shall be an expense of the Mortgagor) to the effect that such
modification, waiver or consent would not cause any REMIC to fail to
qualify as a REMIC under the Code or result in a "prohibited transaction"
under the REMIC Provisions; and
(vii) consent to subject the related Mortgaged Property to an
easement or right-of-way for utilities, access, parking, public
improvements or another purpose, and may consent to subordination of the
related Mortgage Loan to such easement or right-of-way; provided the
applicable Servicer shall have determined in accordance with the Servicing
Standard that such easement or right-of-way shall not materially interfere
with the then-current use of the related Mortgaged Property, or the
security intended to be provided by such Mortgage, the related Mortgagor's
ability to repay the Mortgage Loan, or materially or adversely affect the
value of such Mortgaged Property or cause the Mortgage Loan to cease to be
a "qualified mortgage" for REMIC purposes;
provided, however, if the Mortgage Loan is a Serviced Whole Loan, the applicable
Servicer shall provide written notice of such modification, waiver and amendment
to the holder of the related Serviced Companion Loan to the extent required
under the related Co-Lender Agreement; provided, further, that such Servicer
shall promptly notify the Special Servicer of any requests not subject to this
Section 3.20(a) for which the Special Servicer is responsible pursuant to this
Section 3.20 and shall deliver to the Special Servicer (which delivery may be by
electronic transmission in a format acceptable to such Servicer and Special
Servicer) a copy of the request, and all information in the possession of the
applicable Servicer that the Special Servicer may reasonably request related
thereto.
Other than with respect to modifications, waivers and consents
specifically described in the prior paragraph, the applicable Servicers will
forward all requests (upon the Servicer's receipt of notice of such requests)
for modifications, waivers and consents along with copies of the relevant loan
documents to the Special Servicer. The Servicers shall reasonably cooperate with
the Special Servicer and shall provide the Special Servicer with any additional
information from the related Credit File that the Special Servicer reasonably
may request.
(b) For the avoidance of doubt, and without limiting the generality
of the foregoing, (i) any request for the disbursement of earnouts or holdback
amounts with respect to any Mortgage Loan set forth on the attached Schedule 12
and any Specially Serviced Mortgage Loans, hereto received by the Servicers
shall be submitted to the Special Servicer for processing and (ii) any such
request with respect to any other Mortgage Loan will be processed by the
applicable Servicer. For purposes of this Agreement, "disbursement of earnouts
or holdback amounts" shall mean the disbursement or funding to a Mortgagor of
previously unfunded, escrowed or otherwise reserved portions of the loan
proceeds of the applicable Mortgage Loan until certain conditions precedent
thereto relating to the satisfaction of performance related criteria (e.g.,
project reserve thresholds, lease-up requirements, sales requirements, etc.) as
set forth in the applicable Mortgage Loan documents, have been satisfied.
Neither the Servicers nor the Special Servicer shall permit the
substitution of any Mortgaged Property (or any portion thereof) for one or more
other parcels of real property at any time the Mortgage Loan or Serviced Whole
Loan is not in default pursuant to the terms of the related loan documents or
default with respect thereto is not reasonably foreseeable unless (A) either (i)
such substitution is at the unilateral option of the Mortgagor or otherwise
occurs automatically pursuant to the terms of the Mortgage Loan or Serviced
Whole Loan, within the meaning of Treasury Regulations Section 1.1001-3, or (ii)
it has received an Opinion of Counsel to the effect that such substitution would
not be a "significant modification" of the Mortgage Loan or Serviced Whole Loan
within the meaning of Treasury Regulations Section 1.860G-2(b) and (B) to the
extent not inconsistent with the loan documents, it has received a prior written
confirmation from each Rating Agency that such substitution will not result in
the withdrawal, downgrade, or qualification of the rating assigned by such
Rating Agency to any Class of Certificates or, in the case of a Serviced Whole
Loan, any class of related Serviced Companion Loan Securities then rated by such
Rating Agency.
(c) If the Special Servicer determines that a modification, waiver
or amendment (including, without limitation, the forgiveness or deferral of
interest or principal or the substitution of collateral pursuant to the terms of
the Mortgage Loan or Serviced Whole Loan or otherwise, the release of collateral
or the pledge of additional collateral) of the terms of a Specially Serviced
Mortgage Loan with respect to which a payment default or other material default
has occurred or a payment default or other material default is, in the Special
Servicer's judgment, reasonably foreseeable (as evidenced by an Officer's
Certificate of the Special Servicer), is estimated to produce a greater recovery
on a net present value basis (the relevant discounting to be performed at the
related Mortgage Rate) than liquidation of such Specially Serviced Mortgage Loan
pursuant to Section 3.18, then the Special Servicer will agree to such
modification, waiver or amendment of such Specially Serviced Mortgage Loan,
subject to the provisions of this Section 3.20(c) and Section 3.20(d).
Except as set forth in Section 3.20(b), this Section 3.20(c),
Section 3.20(e) and Section 3.08 but with respect to any Serviced Whole Loan,
subject to the rights of the related holder(s) of a Serviced Companion Loan to
advise the applicable Servicer or Special Servicer, as applicable, with respect
to, or consent to, a modification, waiver or amendment pursuant to the terms of
the related Co-Lender Agreement, the Special Servicer shall not agree to any
modification, waiver or amendment of a Mortgage Loan (other than a Non-Serviced
Mortgage Loan) or Serviced Whole Loan, and, except as provided in Section
3.02(a), Section 3.08, Section 3.20(a) and in Section 3.20(e), no Mortgage Loan
or Serviced Whole Loan that is not a Specially Serviced Mortgage Loan may be
modified, waived or amended, provided, that the Special Servicer may agree to
extend the maturity date of a Mortgage Loan or Serviced Whole Loan that is
neither a Specially Serviced Mortgage Loan nor a Mortgage Loan or Serviced Whole
Loan in default or as to which default is reasonably foreseeable, provided,
that, except as provided in the following sentence, no such extension entered
into pursuant to this Section 3.20(b) shall be for a period of more than twelve
months (or such longer period not to exceed five years if the Special Servicer
determined that such longer period will result in a greater recovery on a net
present value basis to the Trust Fund and if a Serviced Whole Loan is involved,
to the holders of any related Serviced Companion Loan (as a collective whole))
from the original maturity date of such Mortgage Loan or shall extend the
maturity date beyond the earlier of (i) two years prior to the Rated Final
Distribution Date and (ii) in the case of a Mortgage Loan or Serviced Whole Loan
secured by a leasehold estate and not also the related fee interest, the date
twenty years prior to the expiration of such leasehold estate (or ten years
provided that the Special Servicer shall give due consideration to the remaining
term of the ground lease and provided that such extension is in the best
interest of Certificateholders and if a Serviced Whole Loan is involved, the
holders of any related Serviced Companion Loan, as a collective whole, taking
into consideration that the Serviced B Note is subordinate to the related
Mortgage Loan and Serviced Pari Passu Loan). If such extension would extend the
Maturity Date of a Mortgage Loan or Serviced Whole Loan for more than twelve
months (or such longer period not to exceed five years if the Special Servicer
has determined that such longer period will result in a greater recovery on a
net present value basis for the trust fund and if a Serviced Whole Loan is
involved, the holder of the related Serviced Companion Loan, as applicable (as a
collective whole, taking into consideration that the Serviced B Note is
subordinate to the related Mortgage Loan and Serviced Pari Passu Loan)) from and
after the original maturity date of such Mortgage Loan or Serviced Whole Loan
and the Mortgage Loan or Serviced Whole Loan is not in default or default with
respect thereto is not reasonably foreseeable, the Special Servicer must provide
the Trustee with an Opinion of Counsel (at the expense of the related Mortgagor)
that such extension would not constitute a "significant modification" of the
Mortgage Loan within the meaning of Treasury Regulations Section 1.860G-2(b).
Notwithstanding the foregoing, the Special Servicer shall not extend any
Mortgage Loan or Serviced Whole Loan without first sending notice to the
Directing Certificateholder, together with the details of the proposed extension
and other information reasonably requested by the Directing Certificateholder
and the Directing Certificateholder shall have 10 days after it receives such
information to object to such extension and if such objection is not made, the
Directing Certificateholder shall be deemed to have consented to such extension.
If the Directing Certificateholder objects to such extension, the Special
Servicer shall not extend such maturity date and shall have no liability for any
loss caused by the failure to extend such maturity date; provided, however, that
the Special Servicer shall override the Directing Certificateholder's objection
and extend such maturity date if such extension is required by applicable law or
the Servicing Standard.
The Special Servicer shall use its reasonable efforts to the extent
possible to cause each Specially Serviced Mortgage Loan to be paid in full prior
to the Rated Final Distribution Date and shall not agree to a modification,
waiver or amendment of any term of any Specially Serviced Mortgage Loan if such
modification, waiver or amendment would:
(i) extend the maturity date of any such Specially Serviced Mortgage
Loan to a date occurring later than the earlier of (A) with respect to
each Mortgage Loan, two years prior to the Rated Final Distribution Date
and (B) if such Specially Serviced Mortgage Loan is secured by a leasehold
estate and not also the related fee interest, the date occurring twenty
years prior to the expiration of such leasehold (or ten years provided
that the Special Servicer shall give due consideration to the remaining
term of the ground lease and provided that such extension is in the best
interest of the Certificateholders (and, in the case of a Serviced Whole
Loan, the holders of any related Serviced Companion Loan (as a collective
whole, taking into consideration that the Serviced B Note is subordinate
to the related Mortgage Loan and Serviced Pari Passu Loan)); or
(ii) provide for the deferral of interest unless (a) interest
accrues thereon, generally, at the related Mortgage Rate and (b) the
aggregate amount of such deferred interest does not exceed 10% of the
unpaid principal balance of the Specially Serviced Mortgage Loan.
(d) Any provision of this Section 3.20 to the contrary
notwithstanding, except when a Mortgage Loan or Serviced Whole Loan is in
default or default with respect thereto is reasonably foreseeable, no fee
described in this paragraph shall be collected by any Servicer or Special
Servicer from a Mortgagor (or on behalf of the Mortgagor) in conjunction with
any consent to any modification, waiver or amendment of a Mortgage Loan or
Serviced Whole Loan (unless the amount thereof is specified in the related
Mortgage Note) if the collection of such fee would cause such consent,
modification, waiver or amendment to be a "significant modification" of the
Mortgage Note within the meaning of Treasury Regulations Section 1.860G-2(b).
(e) To the extent consistent with this Agreement (and in accordance
with the Servicing Standard), the Special Servicer may agree to any waiver,
modification or amendment of a Mortgage Loan (other than a Non-Serviced Mortgage
Loan) or Serviced Whole Loan that is not in default or as to which default is
not reasonably foreseeable only if it consults with counsel to obtain advice
regarding whether an Opinion of Counsel is advisable and if it is determined by
the Special Servicer to be necessary, provides the Trustee with an Opinion of
Counsel (at the expense of the related Mortgagor or such other Person requesting
such modification or, if such expense cannot be collected from the related
Mortgagor or such other Person, to be paid by the applicable Servicer as a
Servicing Advance) to the effect that the contemplated waiver, modification or
amendment (i) will not be a "significant modification" of the Mortgage Loan or
Serviced Whole Loan within the meaning of Treasury Regulations Section
1.860G-2(b), (ii) will not cause (x) either the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC for purposes of the Code or (y)
either the Lower-Tier REMIC or the Upper-Tier REMIC to be subject to any tax
under the REMIC Provisions. Notwithstanding the foregoing, the Servicers may not
waive the payment of any Yield Maintenance Charge without the consent of the
Special Servicer with respect to any Mortgage Loan or Serviced Whole Loan that
is not a Specially Serviced Mortgage Loan and neither the Servicers nor the
Special Servicer may waive the requirement that any prepayment of a Mortgage
Loan or Serviced Whole Loan be made on a Due Date or, if not made on a Due Date,
be accompanied by all interest that would be due on the next Due Date with
respect to such Mortgage Loan or Serviced Whole Loan, provided, further, that
(i) any modification, extension, waiver or amendment of the payment terms of any
Serviced Whole Loan shall be structured so as to be consistent with the
allocation and payment priorities set forth in the related loan documents and
the related Co-Lender Agreement, such that neither the Trust as holder of the
related Mortgage Loan nor the holder of any related Serviced Companion Loan
shall gain a priority over the other such holder with respect to any payment,
which priority is not, as of the date of the related Co-Lender Agreement,
reflected in the related loan documents and the related Co-Lender Agreement, and
(ii) subject to the foregoing clause (i) and to the extent consistent with the
Servicing Standard (taking into account the extent to which any related Serviced
B Note is junior to the related Mortgage Loan in such Serviced Whole Loan), (A)
no waiver, reduction or deferral of any particular amounts due on the related
Mortgage Loan in such Whole Loan shall be effected prior to the waiver,
reduction or deferral of the entire corresponding item in respect of any related
Serviced B Note in such Whole Loan, and (B) no reduction of the Mortgage Rate of
the Mortgage Loan in such Serviced Whole Loan shall be effected prior to the
reduction of the Mortgage Rate of the related Serviced B Note in such Serviced
Whole Loan, to the maximum extent possible.
(f) In the event of a modification that creates Mortgage Deferred
Interest, such Mortgage Deferred Interest on the Mortgage Loans will be
allocated to reduce the Distributable Certificate Interest of the Class or
Classes of Certificates (other than the Class A-MFL, Class A-JFL, Class X and
Residual Certificates) or the Class A-MFL Regular Interest or Class A-JFL
Regular Interest pursuant to Section 4.06.
(g) Subject to Section 3.20(c) and Section 3.20(m), the Servicers
and the Special Servicer each may, as a condition to its granting any request by
a Mortgagor for consent, modification (including extensions), waiver or
indulgence or any other matter or thing, the granting of which is within the
applicable Servicer's or the Special Servicer's, as the case may be, discretion
pursuant to the terms of the instruments evidencing or securing the related
Mortgage Loan or Serviced Whole Loan and is permitted by the terms of this
Agreement, require that such Mortgagor pay to such Servicer or the Special
Servicer, as the case may be, as additional servicing compensation, a reasonable
or customary fee, for the additional services performed in connection with such
request.
(h) All modifications (including extensions), waivers and amendments
of the Mortgage Loans or Serviced Whole Loans entered into pursuant to this
Section 3.20 shall be in writing, signed by the applicable Servicer or the
Special Servicer, as the case may be, and the related Mortgagor (and by any
guarantor of the related Mortgage Loan or Serviced Whole Loan, if such
guarantor's signature is required by such Servicer or Special Servicer, as
applicable, in accordance with the Servicing Standard).
(i) Each of the Servicers and the Special Servicer, as applicable,
shall notify the Rating Agencies, the Trustee, any holder of a Serviced
Companion Loan (if such notice is required under the related Co-Lender
Agreement) and each other in writing of any modification, waiver or amendment of
any term of any Mortgage Loan or Serviced Whole Loan and the date thereof, and
shall deliver to the Trustee or the related Custodian for deposit in the related
Mortgage File, an original counterpart of the agreement relating to such
modification, waiver or amendment, promptly (and in any event within 10 Business
Days) following the execution thereof. In addition, the Special Servicer shall
promptly send a copy of such a modification, waiver or amendment to the
applicable Servicer. Within 15 days of such Servicer's delivery of the aforesaid
modification, waiver or amendment to the Trustee or its receipt from the Special
Servicer, as applicable, the Trustee shall forward a copy thereof to each Holder
of a Class L, Class M, Class N, Class O, Class P, Class Q or Class T Certificate
and the holder of any related Serviced Companion Loan.
(j) Notwithstanding the foregoing, the applicable Servicer shall
exercise the rights of the lender under the Mortgage Loan documents with respect
to defeasance, provided that such Servicer shall not permit the substitution of
any Mortgaged Property pursuant to the defeasance provisions of any Mortgage
Loan (or any portion thereof), if any, unless such defeasance complies with
Treasury Regulations Section 1.860G-2(a)(8) and: (i) the Servicer has received a
certificate of an Independent certified public accountant to the effect that
such substituted property will provide cash flows sufficient to meet all
payments of interest and principal (including the final payment due at maturity
(or on the date the Mortgage Loan is freely prepayable, assuming the Mortgage
Loan prepays on such date) or, with respect to a Mortgage Loan with an
Anticipated Prepayment Date, the Anticipated Prepayment Date, assuming that such
Mortgage Loan prepays on the related Anticipated Prepayment Date) on such
Mortgage Loan or Serviced Whole Loan in compliance with the requirements of the
terms of the related loan documents, (ii) the Servicer has received one or more
Opinions of Counsel to the effect that the Trustee, on behalf of the Trust Fund,
will have a first priority perfected security interest in such substituted
mortgaged property; provided, however, that to the extent the related loan
documents provide the lender with discretion, such Servicer shall require that
the related Mortgagor pay the cost of any such Opinion of Counsel as a condition
to the defeasance release, (iii) to the extent required under the related loan
documents, or to the extent the loan documents provide the lender with
discretion, such Servicer shall use reasonable efforts to require the Mortgagor
to establish a single purpose entity to act as a successor mortgagor, (iv) to
the extent permissible under the related loan documents and applicable law, the
Servicer shall require the related Mortgagor to pay all costs of such
defeasance, including but not limited to the cost of maintaining any successor
mortgagor; provided, however, that if the successor mortgagor is not affiliated
with the Mortgagor and the Mortgagor is not required to pay such costs, then the
Servicer shall use reasonable efforts to require the owner of such entity to pay
the cost of maintaining such entity (and otherwise such expense shall be
advanced by the Servicer as a Servicing Advance) and (v) to the extent
permissible under the loan documents or to the extent the loan documents permit
the lender's discretion, the Servicer shall obtain, at the expense of the
related Mortgagor, written confirmation from the Rating Agencies that such
defeasance will not cause the downgrade, withdrawal or qualification of the then
current ratings of the Certificates or, in the case of a Serviced Whole Loan,
any class of related Serviced Companion Loan Securities; provided, however, that
such Servicer shall not require the related Mortgagor to obtain such written
confirmation from S&P with respect to any Mortgage Loan that is not one of the
ten largest Mortgage Loans held by the Trust (on the basis of principal balance)
and that has a Stated Principal Balance that is equal to or less than
$35,000,000 or 5% of the aggregate Stated Principal Balance of all of the
Mortgage Loans (whichever is less) if such Servicer delivers to the Trustee and
the Rating Agencies a letter or a certificate in the form of Exhibit X; provided
further, that such written confirmation shall not be required from ▇▇▇▇▇'▇ if
(i) the subject Mortgage Loan complies with the then current applicable
guidelines set forth by ▇▇▇▇▇'▇ or (ii) the unpaid principal balance of such
Mortgage Loan, the percentage such Mortgage Loan constitutes of the Mortgage
Pool or the relative size of such Mortgage Loan with respect to the Mortgage
Pool, as applicable, does not exceed the current applicable threshold for review
as set forth by ▇▇▇▇▇'▇.
(k) Notwithstanding anything herein or in the related loan documents
to the contrary, the Servicers may permit the substitution of direct,
non-callable "government securities" within the meaning of Section 2(a)(16) of
the Investment Company Act of 1940, or any other securities that comply with
Treasury Regulations Section 1.860G-2(a)(8) for any Mortgaged Property pursuant
to the defeasance provisions of any Mortgage Loan or Serviced Whole Loan (or any
portion thereof) in lieu of the defeasance collateral specified in the related
loan documents; provided that the applicable Servicer reasonably determines that
allowing their use would not cause a default or event of default under the
related loan documents to become reasonably foreseeable and the Servicer
receives an Opinion of Counsel (at the expense of the Mortgagor to the extent
permitted under the loan documents) to the effect that such use would not be and
would not constitute a "significant modification" of such Mortgage Loan or
Serviced Whole Loan pursuant to Treasury Regulations Section 1.860G-2(b) and
would not otherwise constitute an Adverse REMIC Event with respect to the
Upper-Tier REMIC or the Lower-Tier REMIC; provided, further, that the
requirements set forth in Section 3.20(j) are satisfied.
(l) If required under the related loan documents, the applicable
Servicer shall set up one or more accounts (the "Defeasance Accounts"), into
which the defeasance collateral substituted for any Mortgaged Property shall be
deposited and retained, and shall administer or cause to be administered such
Defeasance Accounts in accordance with the loan documents. Each Defeasance
Account shall at all times be an Eligible Account administered on behalf of any
successor borrower established under the loan documents. Notwithstanding the
foregoing, in no event shall such Servicer permit such amounts to be maintained
in the Defeasance Account for a period in excess of 120 days, or such other time
period as may be permitted by the IRS, unless such amounts are reinvested by
such Servicer in "government securities" within the meaning of Section 2(a)(16)
of the Investment Company Act of 1940, or any other securities that comply with
Treasury Regulations Section 1.860G-2(a)(8). The applicable Servicer shall
deposit all payments received by it from defeasance collateral substituted for
any Mortgaged Property into the Certificate Account or if a Serviced Whole Loan
is involved, the applicable Serviced Whole Loan Custodial Account and treat any
such payments as payments made on the Mortgage Loan or Serviced Whole Loan in
advance of its Due Date in accordance with clause (a)(i) of the definition of
Available Distribution Amount, and not as a prepayment of the related Mortgage
Loan or Serviced Whole Loan. Notwithstanding anything herein to the contrary, in
no event shall the Servicer permit such amounts to be maintained in the
Certificate Account or if a Serviced Whole Loan is involved, the applicable
Serviced Whole Loan Custodial Account for a period in excess of 365 days.
(m) In the event the applicable Servicer or Special Servicer
determines that a refusal to consent by the Directing Certificateholder or any
holder of a Serviced Companion Loan or any advice from the Directing
Certificateholder or any holder of a Serviced Companion Loan would cause such
Servicer or Special Servicer, as applicable, to violate applicable law, the
terms of any Mortgage Loan documents, the terms of any related Co-Lender
Agreement or the terms of this Agreement, including without limitation, the
Servicing Standard, such Servicer or Special Servicer shall disregard such
refusal to consent or advise and notify the Directing Certificateholder or any
holder of a Serviced Companion Loan (if such notice is required under the
related Co-Lender Agreement), the Trustee and the Rating Agencies of its
determination, including a reasonably detailed explanation of the basis
therefor.
(n) With respect to a defeasance of a GACC Mortgage Loan, to the
extent the related loan documents provide that the originator of such Mortgage
Loan has the right to establish or designate the successor borrower and to
purchase or cause to be purchased the related defeasance collateral ("Defeasance
Rights and Obligations"), the applicable Servicer shall provide, upon receipt of
notice of a request to cause a defeasance of such Mortgage Loan, written notice
of such defeasance to GACC or its assignee. Until such time as GACC provides
written notice to the contrary, notice of a defeasance of a Mortgage Loan with
Defeasance Rights and Obligations shall be delivered to CDHC, LLC, ▇/▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Legal Department, Tel: (704)
▇▇▇-▇▇▇▇; Fax: (▇▇▇) ▇▇▇-▇▇▇▇.
Section 3.21 Transfer of Servicing Between Servicer and Special
Servicer; Record Keeping; Asset Status Report.
(a) Upon a determination that a Servicing Transfer Event has
occurred with respect to any Mortgage Loan (other than a Non-Serviced Whole
Loan) or Serviced Whole Loan required to be serviced hereunder, the Servicers
shall promptly give notice thereof to the Special Servicer, unless such
determination was made by the Special Servicer (and the Special Servicer shall
promptly give notice to the Controlling Class Certificateholders and any holder
of a Serviced Companion Loan, if such notice is required under the related
Co-Lender Agreement), and shall deliver a copy of the related Credit File to the
Special Servicer and shall use its reasonable efforts to provide the Special
Servicer with all information, documents and records (including records stored
electronically on computer tapes, magnetic discs and the like) relating to such
Mortgage Loan or Serviced Whole Loan either in the applicable Servicer's
possession or otherwise available to such Servicer without undue burden or
expense, and reasonably requested by the Special Servicer to enable it to assume
its functions hereunder with respect thereto. The applicable Servicer shall use
its reasonable efforts to comply with the preceding sentence within five
Business Days of the occurrence of each related Servicing Transfer Event and in
any event shall continue to act as the Servicer and administrator of such
Mortgage Loan or Serviced Whole Loan until the Special Servicer has commenced
the servicing of such Mortgage Loan or Serviced Whole Loan, which will commence
upon receipt by the Special Servicer of the Credit File. The applicable Servicer
shall deliver to the Trustee a copy of the notice of such Servicing Transfer
Event provided by such Servicer to the Special Servicer pursuant to this
Section. The Trustee shall deliver to each Controlling Class Certificateholder
and with respect to a Serviced Whole Loan, the holders of any Serviced Companion
Loan a copy of the notice of such Servicing Transfer Event provided by the
Servicers pursuant to this Section.
Upon determining that a Specially Serviced Mortgage Loan (other than
an REO Loan) has become a Corrected Mortgage Loan, the Special Servicer shall
immediately give notice thereof to the applicable Servicer and the Directing
Certificateholder, and shall return the related Credit File to such Servicer (or
copies thereof if copies only were delivered to the Special Servicer) and upon
giving such notice, and returning such Credit File to such Servicer, the Special
Servicer's obligation to service such Corrected Mortgage Loan shall terminate
and the obligations of the applicable Servicer to service and administer such
Mortgage Loan or Serviced Whole Loan shall re-commence.
(b) In servicing any Specially Serviced Mortgage Loans, the Special
Servicer will provide to the Trustee originals of documents included within the
definition of "Mortgage File" for inclusion in the related Mortgage File to the
extent such originals come into the Special Servicer's possession after the
applicable Servicing Transfer Event (with a copy of each such original to the
applicable Servicer), and provide the applicable Servicer with copies of any
additional related Mortgage Loan information including correspondence with the
related Mortgagor.
(c) Notwithstanding the provisions of Section 3.12(c), the Servicers
shall maintain ongoing payment records with respect to each of the Specially
Serviced Mortgage Loans and REO Properties and shall provide the Special
Servicer with any information in its possession required by the Special Servicer
to perform its duties under this Agreement; provided that the Servicers shall
only be required to maintain such records to the extent the Special Servicer has
provided such information to the Servicers.
(d) No later than 30 days after a Servicing Transfer Event for a
Mortgage Loan (other than a Non-Serviced Mortgage Loan), the Special Servicer
shall deliver to the Trustee, the Servicers, each Rating Agency and the
Directing Certificateholder or, in the case of the ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Mortgage
Loan, the ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Directing Holder, or in the case of The Enclave
Mortgage Loan, The Enclave Directing Holder, a report (the "Asset Status
Report") with respect to such Mortgage Loan and the related Mortgaged Property;
provided, however, the Special Servicer shall not be required to deliver an
Asset Status Report to the Directing Certificateholder if they are the same
entity. Such Asset Status Report shall set forth the following information to
the extent reasonably determinable:
(i) date of transfer of servicing of such Mortgage Loan or Serviced
Whole Loan to the Special Servicer;
(ii) summary of the status of such Specially Serviced Mortgage Loan
and any negotiations between the Special Servicer and the related
Mortgagor;
(iii) a discussion of the legal and environmental considerations
known to the Special Servicer, consistent with the Servicing Standard,
that are applicable to the exercise of remedies as aforesaid and to the
enforcement of any related guaranties or other collateral for the related
Mortgage Loan or Serviced Whole Loan and whether outside legal counsel has
been retained;
(iv) the most current rent roll and income or operating statement
available for the related Mortgaged Property;
(v) the Special Servicer's recommendations on how such Specially
Serviced Mortgage Loan might be returned to performing status (including
the modification of a monetary term, and any work-out, restructure or debt
forgiveness) and returned to the applicable Servicer for regular servicing
or foreclosed or otherwise realized upon (including any proposed sale of a
Defaulted Mortgage Loan or REO Property);
(vi) a copy of the last obtained Appraisal of the Mortgaged
Property; and
(vii) such other information as the Special Servicer deems relevant
in light of the Servicing Standard.
With respect to any Serviced Whole Loan, subject to the rights of
the related holder(s) of a Serviced Companion Loan pursuant to the terms of the
related Co-Lender Agreement, if within 10 Business Days of receiving an Asset
Status Report, the Directing Certificateholder, the ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Directing
Holder or The Enclave Directing Holder, as applicable, 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,
that the Special Servicer may not take any action that is contrary to applicable
law, this Agreement, the Servicing Standard or the terms of the applicable loan
documents. If the Directing Certificateholder, the ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Directing
Holder or The Enclave Directing Holder, as applicable, disapproves such Asset
Status Report within 10 Business Days of receipt, the Special Servicer will
revise such Asset Status Report and deliver to the Directing Certificateholder,
the ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Directing Holder or The Enclave Directing Holder, as
applicable, the Rating Agencies, the applicable Servicer and, with respect to a
Serviced Whole Loan, the holder of any Serviced Companion Loan a new Asset
Status Report as soon as practicable, but in no event 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 Directing Certificateholder,
the ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Directing Holder or The Enclave Directing Holder, as
applicable, shall fail to disapprove such revised Asset Status Report in writing
within 10 Business Days of receiving such revised Asset Status Report or until
the Special Servicer makes one of the determinations described below.
Notwithstanding the foregoing, in the event the Directing Certificateholder, the
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Directing Holder or The Enclave Directing Holder, as
applicable, and the Special Servicer have been unable to agree upon an Asset
Status Report with respect to a Specially Serviced Mortgage Loan within 60 days
of the Directing Certificateholder's, the ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Directing Holder's or
The Enclave Directing Holder's, as applicable, receipt of the initial Asset
Status Report, the Special Servicer shall implement the actions described in the
most recent Asset Status Report submitted to the Directing Certificateholder,
the ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Directing Holder or The Enclave Directing Holder, as
applicable, by the Special Servicer, subject to the terms of Section 3.20 of
this Agreement. The Special Servicer may, from time to time, modify any Asset
Status Report it has previously delivered and implement such report, provided
such report shall have been prepared, reviewed and not rejected pursuant to the
terms of this Section, and in particular, shall modify and resubmit such Asset
Status Report to the Directing Certificateholder, the ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Directing
Holder or The Enclave Directing Holder, as applicable, (with a copy to the
Trustee) if (i) the estimated sales proceeds, foreclosure proceeds, work-out or
restructure terms or anticipated debt forgiveness varies materially from the
amount on which the original report was based or (ii) the related Mortgagor
becomes the subject of bankruptcy proceedings. Notwithstanding the foregoing,
the Special Servicer (i) may, following the occurrence of an extraordinary event
with respect to the related Mortgaged Property, take any action set forth in
such Asset Status Report before the expiration of a 10 Business Day period if
the Special Servicer has reasonably determined that failure to take such action
would materially and adversely affect the interests of the Certificateholders
and, if a Serviced Whole Loan is involved, the interests of the holders of any
related Serviced Companion Loan, as a collective whole, taking into
consideration the Serviced B Note is subordinate to the related Mortgage Loan
and Serviced Pari Passu Loan and it has made a reasonable effort to contact the
Directing Certificateholder, the ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Directing Holder or The
Enclave Directing Holder, as applicable, and, if a Serviced Whole Loan is
involved, the holder of a related Serviced Companion Loan, and (ii) in any case,
shall determine whether such affirmative disapproval is not in the best interest
of all the Certificateholders and, if a Serviced Whole Loan is involved, the
holder of any related Serviced Companion Loan (as a collective whole) pursuant
to the Servicing Standard, and, upon making such determination, shall implement
the recommended action outlined in the Asset Status Report.
The Special Servicer shall have the authority to meet with the
Mortgagor for any Specially Serviced Mortgage 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 in order to act in
accordance with the Servicing Standard, this Agreement, applicable law or the
related loan documents.
No direction of the Directing Certificateholder, the ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Directing Holder or The Enclave Directing Holder shall (a) require,
permit or cause the Servicers or Special Servicer to violate the terms of a
Mortgage Loan or Specially Serviced Mortgage Loan, applicable law or any
provision of this Agreement, including, but not limited to, Section 3.09,
Section 3.18, Section 3.20 and Section 3.29 and either Servicer's or Special
Servicer's obligation to act in accordance with the Servicing Standard and to
maintain the REMIC status of each of the Lower-Tier REMIC and the Upper-Tier
REMIC, or (b) result in the imposition of a "prohibited transaction" or
"prohibited contribution" tax under the REMIC Provisions of the Code, or (c)
expose either Servicer, the Special Servicer, the Depositor, the Mortgage Loan
Sellers, the Trust Fund, the Trustee or their respective affiliates,
shareholders, officers, directors, employees or agents to any claim, suit or
liability or (d) materially expand the scope of the Special Servicer's,
Trustee's or the Servicers' responsibilities under this Agreement. Neither the
Servicers nor the Special Servicer shall follow any direction of the Directing
Certificateholder described in this paragraph or take or refrain from taking any
action that would result in any of the foregoing.
Section 3.22 Sub-Servicing Agreements.
(a) The Servicers and the Special Servicer may enter into
Sub-Servicing Agreements to provide for the performance by third parties of any
or all of its respective obligations under Articles III, IV and XI hereof;
provided that each Sub-Servicing Agreement, as such Sub-Servicing Agreement may
be amended or modified: (i) is consistent with this Agreement in all material
respects and requires the Sub-Servicer to comply with all of the applicable
conditions of this Agreement (including, for the avoidance of doubt, that no
such Sub-Servicer is a Prohibited Party at the time the Sub-Servicing Agreement
is entered into) and, if applicable, the related Mortgage Loan documents; (ii)
provides that if either Servicer or the Special Servicer, as applicable, shall
for any reason no longer act in such capacity hereunder (including, without
limitation, by reason of an Event of Default), the Trustee or its designee shall
thereupon assume all of the rights and, except to the extent they arose prior to
the date of assumption, obligations of the Servicer or the Special Servicer, as
applicable, under such agreement (subject to Section 3.22(i) of this Agreement);
(iii) provides that the Trustee for the benefit of the Certificateholders and
the Trustee (as holder of the Uncertificated Lower-Tier Interests, the Class
A-MFL Regular Interest and the Class A-JFL Regular Interest) (and if a Serviced
Whole Loan is involved, for the benefit of the Certificateholders and the
holders of any related Serviced Companion Loan as a collective whole) shall be a
third party beneficiary under such Sub-Servicing Agreement, but that (except to
the extent the Trustee or its designee assumes the obligations of the related
Servicer or the Special Servicer, as applicable, thereunder as contemplated by
the immediately preceding clause (ii)) none of the Trust Fund, the Trustee, any
successor Servicer or Special Servicer, as applicable, or any Certificateholder
or any holder of a Serviced Companion Loan shall have any duties under such
Sub-Servicing Agreement or any liabilities arising therefrom; (iv) permits any
purchaser of a Mortgage Loan pursuant to this Agreement to terminate such
Sub-Servicing Agreement (other than Sub-Servicing Agreements with a Loan Seller
Sub-Servicer dated the date of this Agreement or pursuant to existing
sub-servicing arrangements with a Mortgage Loan Seller as of the date hereof)
with respect to such purchased Mortgage Loan at its option and without penalty;
(v) does not permit the Sub-Servicer any direct rights of indemnification that
may be satisfied out of assets of the Trust Fund; (vi) any such Sub-Servicing
Agreement provides that, for so long as the Trust is subject to the reporting
requirements of the Exchange Act: (x) the failure of the related Sub-Servicer to
comply with any of the requirements under Article XI of this Agreement,
including the failure to deliver any reports or certificates at the time such
report or certification is required under Article XI and (y) the failure of the
related Sub-Servicer to comply with any requirements to deliver any items
required by Items 1122 and 1123 of Regulation AB under any other pooling and
servicing agreement relating to any transaction similar to the Subject
Securitization Transaction shall constitute an event of default by such
Sub-Servicer upon the occurrence of which either the applicable Servicer or the
Depositor shall immediately terminate the related Sub-Servicer under the related
sub-servicing agreement and that such termination shall be deemed for cause and
(vii) with respect to any Sub-Servicing Agreement entered into after the Closing
Date and prior to the date upon which the Trustee terminates the Trust's
Exchange Act reporting obligations by filing the Form 15 as contemplated by
Section 11.10, such Sub-Servicer is not a Prohibited Party at the time such
Sub-Servicing Agreement is entered into. In addition, prior to the date upon
which the Trustee terminates the Trust's Exchange Act reporting obligations by
filing the Form 15 as contemplated by Section 11.10 of this Agreement, the
Servicers or Special Servicer shall not enter into any Sub-Servicing Agreement
with a Sub-Servicer without obtaining written confirmation that the Depositor
has no knowledge of such Sub-Servicer's previous failure to comply with any
obligations such Sub-Servicer may have under Article XI of this Agreement or
with any similar Exchange Act or Regulation AB reporting requirements under any
servicing agreement relating to any other transaction. Any successor Servicer or
Special Servicer, as applicable, hereunder shall, upon becoming successor
Servicer or Special Servicer, as applicable, be assigned and shall assume any
Sub-Servicing Agreements from the predecessor Servicer or Special Servicer, as
applicable (subject to Section 3.22(i) of the Agreement). Each Sub-Servicing
Agreement entered into by the Servicers may provide that the obligations of the
Sub-Servicer thereunder shall terminate with respect to any Mortgage Loan or
Serviced Whole Loan serviced thereunder at the time such Mortgage Loan or
Serviced Whole Loan becomes a Specially Serviced Mortgage Loan; provided,
however, that the Sub-Servicing Agreement may provide that the Sub-Servicer will
continue to make all Advances and calculations and prepare all reports required
under the Sub-Servicing Agreement with respect to Specially Serviced Mortgage
Loans and continue to collect its servicing fee as if no Servicing Transfer
Event had occurred and with respect to REO Properties (and the related REO
Loans) as if no REO Acquisition had occurred and to render such incidental
services with respect to such Specially Serviced Mortgage Loans and REO
Properties as are specifically provided for in such Sub-Servicing Agreement. The
Servicers or the Special Servicer, as applicable, 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. References in this Agreement to actions taken or to
be taken by the Servicers or the Special Servicer, as applicable, include
actions taken or to be taken by a Sub-Servicer on behalf of the Servicers or the
Special Servicer, as applicable; and, in connection therewith, all amounts
advanced by any Sub-Servicer to satisfy the obligations of the Servicers or the
Special Servicer, as applicable hereunder to make Advances shall be deemed to
have been advanced by the related Servicer or the Special Servicer, as
applicable, out of its own funds and, accordingly, such Advances shall be
recoverable by such Sub-Servicer from the applicable Servicer or the Special
Servicer, as applicable, in the same manner and out of the same funds as if such
Sub-Servicer were the Servicer or the Special Servicer, as applicable, and, for
so long as they are outstanding, such Advances shall accrue interest in
accordance with Section 3.03(e), such interest to be allocable between the
related Servicer or the Special Servicer, as applicable, and such Sub-Servicer
pursuant to the terms of the Sub-Servicing Agreement. For purposes of this
Agreement, the applicable Servicer or the Special Servicer, as applicable, shall
be deemed to have received any payment when a Sub-Servicer retained by it
receives such payment.
(b) Each Sub-Servicer shall be authorized to transact business in
the state or states in which the related Mortgaged Properties it is to service
are situated, if and to the extent required by applicable law to ensure the
enforceability of any related Loan.
(c) As part of its servicing activities hereunder, the Servicers or
the Special Servicer, as applicable, for the benefit of the Trustee and the
Certificateholders and if a Serviced Whole Loan is involved, the holders of any
related Serviced Companion Loan, shall (at no expense to the Trustee, the
Certificateholders or the Trust Fund or the holders of any related Serviced
Companion Loan) monitor the performance and enforce the obligations of its
respective Sub-Servicer(s) under the related Sub-Servicing Agreement. Such
enforcement, including, without limitation, the legal prosecution of claims 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 applicable Servicer or the Special
Servicer, as applicable, would require were it the owner of the Mortgage Loans.
The Servicers and the Special Servicer, as applicable, shall have the right to
remove a Sub-Servicer retained by it in accordance with the terms of the related
Sub-Servicing Agreement.
(d) In the event the Trustee or its designee (i) becomes successor a
Servicer, or successor Special Servicer, as applicable, pursuant to Section
3.22(a) and (ii) assumes the rights and obligations of either Servicer or the
Special Servicer, as applicable, under any Sub-Servicing Agreement, then the
Servicer or the Special Servicer, as applicable, at its expense, shall deliver
to the assuming party all documents and records relating to such Sub-Servicing
Agreement and the Mortgage Loans and Serviced Whole Loans then being serviced
thereunder and an accounting of amounts collected and held on behalf of it
thereunder, and otherwise use reasonable efforts to effect the orderly and
efficient transfer of the Sub-Servicing Agreement to the assuming party.
(e) Notwithstanding the provisions of any Sub-Servicing Agreement
and this Section 3.22, each of the Servicers and the Special Servicer represents
and warrants that it shall remain obligated and liable to the Trustee, the
Certificateholders and the holders of any Serviced Companion Loan 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 Mortgage Loans
and Serviced Whole Loans for which it is responsible, and the related Servicer
and the Special Servicer, as applicable, shall pay the fees of any Sub-Servicer
thereunder from its own funds. In no event shall the Trust Fund or any holder of
a Serviced Companion Loan bear any termination fee required to be paid to any
Sub-Servicer as a result of such Sub-Servicer's termination under any
Sub-Servicing Agreement.
(f) The Trustee shall, upon the receipt of a written request of a
Servicing Officer, execute and deliver to the Sub-Servicer any
powers-of-attorney and other documents prepared by the Sub-Servicer and
necessary or appropriate to enable the Sub-Servicer to carry out its servicing
and administrative duties under the Sub-Servicing Agreement. Notwithstanding
anything herein to the contrary, the Sub-Servicer shall not without the
Trustee's written consent: (i) initiate any action, suit or proceeding solely
under the Trustee's name without indicating the Sub-Servicer's representative
capacity or (ii) take any action with the intent to cause, and which actually
does cause, the Trustee to be registered to do business in any state. The
applicable Sub-Servicing Agreement shall provide that the Sub-Servicer shall
indemnify the Trustee for any and all reasonable out-of-pocket costs,
liabilities and expenses incurred by the Trustee in connection with the
negligent or willful misuse of such powers-of-attorney by the Sub-Servicer, and
the related Servicer or Special Servicer, as applicable, will provide written
certification thereof to the Trustee upon request.
(g) Promptly after the execution of any Sub-Servicing Agreement,
either Servicer or the Special Servicer, as applicable, shall forward a copy of
such Sub-Servicing Agreement to the Trustee, the Special Servicer or the related
Servicer, as applicable.
(h) Any Sub-Servicing Agreement that may be entered into and any
other transactions or servicing arrangements relating to the Mortgage Loans
involving a Sub-Servicer shall be deemed to be between the Sub-Servicer and the
Servicer or Special Servicer, as applicable, and none of the other parties to
this Agreement (including the Servicer or the Special Servicer, whichever is not
party to such agreement), the Certificateholders or the holders of any Serviced
Companion Loan shall be deemed parties thereto and none of such Persons shall
have claims or rights (except as specified below), nor obligations, duties or
liabilities with respect to the Sub-Servicer.
(i) Each Sub-Servicing Agreement (other than any sub-servicing
agreement with a Loan Seller Sub-Servicer (each, a "Current Sub-Servicing
Agreement")) shall provide that, in the event the Trustee or any other Person
becomes successor Servicer, the Trustee or such successor Servicer shall have
the right to terminate such Sub-Servicing Agreement with or without cause and
without a fee. Notwithstanding the foregoing, the Trustee and any successor
Servicer shall assume the Bank of America Sub-Servicing Agreement or any Current
Sub-Servicing Agreement, unless Bank of America and/or any other related
Sub-Servicer under such Current Sub-Servicing Agreement, as applicable, has been
terminated in accordance with the succeeding paragraph.
(j) The Servicer will examine each Sub-Servicing Agreement and will
be familiar with the terms thereof. Any Sub-Servicing Agreements will comply
with the provisions of Section 3.22.
In the event Bank of America and/or any other related Sub-Servicer
under a Current Sub-Servicing Agreement, as applicable, is not an acceptable or
approved Servicer or primary servicer to the Rating Agencies at the time the
Trustee or a successor Servicer becomes successor Servicer, Bank of America or
such Sub-Servicer, as applicable, shall have 30 days after notice from the
Trustee or the successor Servicer to either (i) cure such failure or (ii) assign
such Sub-Servicing Agreement to a Successful Sub-Servicing Bidder (as defined
below) subject, if applicable, to the terms of the Mortgage Loan documents. If
Bank of America or such Sub-Servicer, as applicable, fails to either (i) cure
such failure or (ii) assign such Sub-Servicing Agreement to a Successful
Sub-Servicing Bidder, the Trustee or the successor Servicer may terminate such
Sub-Servicing Agreement.
A "Successful Sub-Servicing Bidder" will be any prospective
subservicer candidate reasonably acceptable to the Depositor, the successor
Servicer and acceptable to the Rating Agencies, as evidenced by written
confirmation from the Rating Agencies that the assumption by such Successful
Sub-Servicing Bidder of such Sub-Servicing Agreement, will not cause the
downgrade, withdrawal or qualification of the then current ratings of the
Certificates or violate the terms of any Mortgage Loan documents, which
candidate would be eligible to act as Sub-Servicer hereunder.
Section 3.23 Representations, Warranties and Covenants of the
Servicers.
(a) Servicer No. 1 hereby represents and warrants to the Trustee,
for its own benefit and the benefit of the Certificateholders, and the holders
of any Serviced Companion Loan, and to the Depositor and the Special Servicer,
as of the Closing Date, that:
(i) It is a corporation duly organized, validly existing and in good
standing under the laws of the state of Ohio, and Servicer No. 1 is in
compliance with the laws of each State in which any Mortgaged Property is
located to the extent necessary to perform its obligations under this
Agreement;
(ii) The execution and delivery of this Agreement by Servicer No. 1,
and the performance and compliance with the terms of this Agreement by
Servicer No. 1, will not violate Servicer No. 1's organizational documents
or constitute a default (or an event which, with notice or lapse of time,
or both, would constitute a default) under, or result in the breach of,
any material agreement or other material instrument to which it is a party
or which is applicable to it or any of its assets, or result in the
violation of any law, rule, regulation, order, judgment or decree to which
Servicer No. 1 or its property is subject; which, in any case, is likely
to materially and adversely affect the Servicer's ability to perform
hereunder;
(iii) This Agreement, assuming due authorization, execution and
delivery by the Trustee, Servicer No. 2, the Special Servicer and the
Depositor, constitutes a valid, legal and binding obligation of Servicer
No. 1, enforceable against Servicer No. 1 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;
(iv) Servicer No. 1 is not in violation of any law, any order or
decree of any court or arbiter, or any order, regulation or demand of any
federal, state, municipal or governmental agency, which violation might
have consequences that would materially and adversely affect the condition
(financial or otherwise) or operations of Servicer No. 1 or its properties
or might have consequences that would materially and adversely affect its
ability to perform its duties and obligations hereunder;
(v) No litigation is pending or, to the best of Servicer No. 1's
knowledge, threatened against the Servicer which, if determined adversely
to Servicer No. 1, would prohibit Servicer No. 1 from entering into this
Agreement or, in Servicer No. 1's good faith and reasonable judgment, is
likely to materially and adversely affect either the ability of Servicer
No. 1 to perform its obligations under this Agreement or the financial
condition of Servicer No. 1;
(vi) Servicer No. 1 has examined each Sub-Servicing Agreement and is
familiar with the terms thereof.
(vii) Servicer No. 1 has in place 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 any court or
governmental agency or body is required for the execution, delivery and
performance by Servicer No. 1 of, or compliance by Servicer No. 1 with,
this Agreement or the consummation of the transactions contemplated by
this Agreement, except for any consent, approval, authorization or order
which has not been obtained or cannot be obtained prior to the actual
performance by Servicer No. 1 of its obligations under this Agreement, and
which, if not obtained would not have a materially adverse effect on the
ability of Servicer No. 1 to perform its obligations hereunder; and
(ix) Servicer No. 1 has full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(b) Servicer No. 2 hereby represents and warrants to the Trustee,
for its own benefit and the benefit of the Certificateholders, and the holders
of any Serviced Companion Loan, and to the Depositor and the Special Servicer,
as of the Closing Date, that:
(i) It is a national banking association duly organized and validly
existing and in good standing under the laws of the United States, and
Servicer No. 2 is in compliance with the laws of each State in which any
Mortgaged Property is located to the extent necessary to perform its
obligations under this Agreement;
(ii) The execution and delivery of this Agreement by Servicer No. 2,
and the performance and compliance with the terms of this Agreement by
Servicer No. 2, will not violate Servicer No. 2's organizational documents
or constitute a default (or an event which, with notice or lapse of time,
or both, would constitute a default) under, or result in the breach of,
any material agreement or other material instrument to which it is a party
or which is applicable to it or any of its assets, or result in the
violation of any law, rule, regulation, order, judgment or decree to which
Servicer No. 2 or its property is subject; which, in any case, is likely
to materially and adversely affect the Servicer's ability to perform
hereunder;
(iii) This Agreement, assuming due authorization, execution and
delivery by the Trustee, Servicer No. 1, the Special Servicer and the
Depositor, constitutes a valid, legal and binding obligation of Servicer
No. 2, enforceable against Servicer No. 2 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;
(iv) Servicer No. 2 is not in violation of any law, any order or
decree of any court or arbiter, or any order, regulation or demand of any
federal, state, municipal or governmental agency, which violation might
have consequences that would materially and adversely affect the condition
(financial or otherwise) or operations of Servicer No. 2 or its properties
or might have consequences that would materially and adversely affect its
ability to perform its duties and obligations hereunder;
(v) No litigation is pending or, to the best of Servicer No. 2's
knowledge, threatened against the Servicer which, if determined adversely
to Servicer No. 2, would prohibit Servicer No. 2 from entering into this
Agreement or, in Servicer No. 2's good faith and reasonable judgment, is
likely to materially and adversely affect either the ability of Servicer
No. 2 to perform its obligations under this Agreement or the financial
condition of Servicer No. 2;
(vi) Servicer No. 2 has examined each Sub-Servicing Agreement and is
familiar with the terms thereof.
(vii) Servicer No. 2 has in place 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 any court or
governmental agency or body is required for the execution, delivery and
performance by Servicer No. 2 of, or compliance by Servicer No. 2 with,
this Agreement or the consummation of the transactions contemplated by
this Agreement, except for any consent, approval, authorization or order
which has not been obtained or cannot be obtained prior to the actual
performance by Servicer No. 2 of its obligations under this Agreement, and
which, if not obtained would not have a materially adverse effect on the
ability of Servicer No. 2 to perform its obligations hereunder; and
(ix) Servicer No. 2 has full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(c) The representations and warranties set forth in paragraphs (a)
and (b) above shall survive the execution and delivery of the Agreement.
Section 3.24 Representations, Warranties and Covenants of the
Special Servicer.
(a) The Special Servicer hereby represents and warrants to the
Trustee, for its own benefit and the benefit of the Certificateholders and the
holders of any Serviced Companion Loan, and to the Depositor and the Servicers,
as of the Closing Date, that:
(i) The Special Servicer is a corporation, duly organized, validly
existing and in good standing under the laws of the State of Florida, and
the Special Servicer is in compliance with the laws of each State in which
any Mortgaged Property is located to the extent necessary to perform its
obligations under this Agreement;
(ii) The execution and delivery of this Agreement by the Special
Servicer, and the performance and compliance with the terms of this
Agreement by the Special Servicer, will not violate the Special Servicer's
organizational documents or constitute a default (or an event which, 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 which is applicable to it or any of its assets;
(iii) The Special 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 Special Servicer, enforceable against the
Special Servicer 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 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 will 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 which, if
determined adversely to the Special Servicer, would prohibit the Special
Servicer from entering into this Agreement or, in the Special Servicer's
good faith and 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, manager or employee of the Special Servicer and
each officer, manager or employee of the Special Servicer that has or,
following the occurrence of a Servicing Transfer Event, would have
responsibilities concerning the servicing and administration of Mortgage
Loans and Serviced Whole Loans is covered by errors and omissions
insurance in the amounts and with the coverage required by Section
3.07(c). Neither the Special Servicer nor any of its officers, managers or
employees that is or, following the occurrence of a Servicing Transfer
Event, would be involved in the servicing or administration of Mortgage
Loans and Serviced Whole Loans has been refused such coverage or
insurance; and
(viii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Special Servicer, or compliance by the Special Servicer
with, this Agreement or the consummation of the transactions contemplated
by this Agreement, except for any consent, approval, authorization or
order which has not been obtained or cannot be obtained prior to the
actual performance by the Special Servicer of its obligations under this
Agreement, and which, if not obtained would not have a materially adverse
effect on the ability of the Special Servicer to perform its obligations
hereunder.
(ix) The Special Servicer has reviewed all Sub-Servicing Agreements
to which it is a party in effect as of the Closing Date and will review
all Sub-Servicing Agreements entered into by it after the Closing Date.
Any Sub-Servicing Agreement will comply with the provisions of Section
3.22(a) and (h).
(b) The representations and warranties set forth in paragraph (a)
above shall survive the execution and delivery of the Agreement.
Section 3.25 Interest Reserve Account.
(a) On each P&I Advance Date relating to any Interest Accrual Period
ending in any January and on any P&I Advance Date which occurs in a year which
is not a leap year relating to any Interest Accrual Period ending in any
December (unless, in either case, the related Distribution Date is the final
Distribution Date), the Trustee, in respect of the Interest Reserve Loans, shall
deposit into the Interest Reserve Account, an amount equal to one day's interest
on the Stated Principal Balance of the Interest Reserve Loans as of the Due Date
occurring in the month preceding the month in which such P&I Advance Date occurs
at the related Mortgage Rate (without giving effect to the second proviso of the
definition thereof) less the Administrative Cost Rate, to the extent a full
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").
(b) On each Distribution Date occurring in March (or February, if
the related Distribution Date is the final Distribution Date), the Trustee shall
withdraw from the Interest Reserve Account an amount equal to the Withheld
Amounts from the preceding January (if applicable) and February, if any, and
deposit such amount into the Lower Tier Distribution Account.
Section 3.26 Reserved.
Section 3.27 Co-Lender Agreements.
(a) Each of the parties hereto acknowledges and agrees that each
Serviced Whole Loan is subject to the terms and provisions of the related
Co-Lender Agreement and each of the Servicer and the Special Servicer agrees to
service each Serviced Whole Loan in accordance with the related Co-Lender
Agreement and this Agreement, including, without limitation, effecting
distributions and allocating reimbursement of expenses in accordance with the
related Co-Lender Agreement. Notwithstanding anything contrary in this
Agreement, each of the Servicers and Special Servicer agrees not to take any
action with respect to a Serviced Whole Loan or the related Mortgaged Property
without the prior consent of any related Serviced Companion Loan to the extent
that the related Co-Lender Agreement provides that the consent of the holder(s)
of the related Serviced Companion Loan is required; provided, that in no event
shall either Servicer or Special Servicer violate the Servicing Standard or the
REMIC Provisions as set forth in Section 3.30 hereof. Each of the Servicers and
Special Servicer acknowledges and agrees that the holder of such Serviced B Note
has the right to purchase the related Mortgage Loan pursuant to the terms and
conditions of the related Co-Lender Agreement.
(b) The Servicers may rely on the Whole Loan Report attached hereto
as Exhibit T, and shall update such list from time to time as it receives
notices from the holders of the Serviced Companion Loans regarding the
information listed on Exhibit T. Unless and until such holder informs in writing
the applicable Servicer of any transfer of the Serviced Companion Loan, such
Servicer may rely on the initial list set forth on Exhibit T hereto. The
applicable Servicer may, without further investigation, conclusively rely upon
such information. The applicable Servicer shall have no liability to any Person
for any payments made or notices directed in accordance with the most recent
information furnished by a holder of a Serviced Companion Loan, prior to such
payment or notice.
(c) With respect to a Serviced Whole Loan and any approval and
consent rights of the holder of the Mortgage Loan set forth in the related
Co-Lender Agreement, the Directing Certificateholder may exercise the portion of
such rights allocated to the related Mortgage Loan pursuant to the related
Co-Lender Agreement, subject to the limitations set forth in this Agreement.
(d) All requirements of the Servicers and the Special Servicer to
provide notices, reports, statements or other information (including the access
to information on a website) to the Directing Certificateholder contained in
this Agreement shall also apply to each controlling holder of a Serviced
Companion Loan with respect to information relating to the related Serviced
Whole Loan.
Section 3.28 Certain Matters Relating to the Non-Serviced Mortgage
Loans.
(a) The parties hereto acknowledge that each Non-Serviced Mortgage
Loan is subject to the terms and conditions of the related Co-Lender Agreement
and that each Non-Serviced Mortgage Loan is further subject to the servicing
under and all other terms and conditions of the related Non-Serviced Mortgage
Loan Pooling Agreement.
(b) Notwithstanding anything herein to the contrary, the parties
hereto acknowledge and agree that each Servicer's and the Special Servicer's
obligations and responsibilities hereunder and each Servicer's and the Special
Servicer's authority with respect to each Non-Serviced Whole Loan are limited by
and subject to the terms of the related Non-Serviced Mortgage Loan Co-Lender
Agreement and the rights of the related Non-Serviced Mortgage Loan Servicer and
the related Non-Serviced Mortgage Loan Special Servicer with respect thereto
under the related Non-Serviced Mortgage Loan Pooling Agreement.
The Trustee, on behalf of the Certificateholders, hereby assumes the
obligations of the holder of a Non-Serviced Mortgage Loan under the related
Co-Lender Agreement and agrees to enforce any rights it may have as holder of
such Non-Serviced Mortgage Loan under such Co-Lender Agreement or the related
Non-Serviced Mortgage Loan Pooling and Servicing Agreement; provided that any
other obligations will be performed by either the Trustee or the applicable
Servicer, as such parties may (in good faith and with reasonable efforts)
mutually agree; provided, further, that if the Trustee and such Servicer cannot
reach an agreement regarding whether the Trustee or such Servicer shall perform
any such other obligation, then the Trustee shall perform such other obligation.
(c) In the event that any Non-Serviced Mortgage Loan Trustee,
Non-Serviced Mortgage Loan Servicer or Non-Serviced Mortgage Loan Special
Servicer shall be replaced in accordance with the terms of the Non-Serviced
Mortgage Loan Pooling Agreement, promptly upon notice thereof, the applicable
Servicer and the Special Servicer shall, upon request, acknowledge its successor
as the successor to the related Non-Serviced Mortgage Loan Trustee, Non-Serviced
Mortgage Loan Servicer or Non-Serviced Mortgage Loan Special Servicer, as the
case may be.
(d) Reserved.
(e) The Servicers shall deliver, or cause to be delivered, to the
Trustee, promptly following receipt from a Non-Serviced Mortgage Loan Servicer,
Non-Serviced Mortgage Loan Special Servicer or Non-Serviced Mortgage Loan
Trustee, any servicing reports concerning the related Non-Serviced Mortgage
Loan.
(f) The Directing Certificateholder is authorized to exercise the
rights and powers of the Trustee, as holder of the related Mortgage Note for
each of the Non-Serviced Mortgage Loans, under each of the related Co-Lender
Agreements and Non-Serviced Mortgage Loan Pooling Agreements to the extent set
forth in this Agreement. The Directing Certificateholder shall be subject to the
same limitations, constraints and restrictions in exercising such rights and
powers as would be applicable to the Trustee, in its capacity as holder of the
related Mortgage Note for the applicable Non-Serviced Mortgage Loan. Subject to
any section of the applicable Co-Lender Agreement that specifically addresses a
particular matter with respect to a Non-Serviced Mortgage Loan, if the Trustee
is requested to take any action in its capacity as holder of the Note for such
Non-Serviced Mortgage Loan, the Trustee will notify in writing the Directing
Certificateholder and, subject to Section 8.01, act in accordance with the
instructions of such party to the extent set forth in this Agreement; provided,
that the Trustee shall not be required to take any action at the direction of
the Directing Certificateholder that is not permitted under applicable law or
the terms of the related Non-Serviced Mortgage Loan Pooling Agreement or
Co-Lender Agreement. Notwithstanding the foregoing, the Directing
Certificateholder may only exercise any purchase option or cure rights with
respect to a Non-Serviced Mortgage Loan in its individual capacity and not on
behalf of the Trust.
Section 3.29 Certain Matters Regarding the Purchase of the Mortgage
Loans Included in the Serviced Whole Loans.
If, pursuant to Section 2.03, Section 3.18 and Section 9.01, a
Mortgage Loan included in a Serviced Whole Loan is purchased or repurchased from
the Trust Fund, the purchaser thereof shall be bound by the terms of the related
Co-Lender Agreement and shall assume the rights and obligations of the "A Note
Holder" under such Co-Lender 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 "A Note Holder" (as a result of such purchase
or repurchase), under such Co-Lender Agreement in the manner contemplated under
such agreement, which such purchaser shall be deemed to acknowledge. Thereafter,
such Mortgage File shall be held by the custodian appointed thereby for the
benefit of the "A Note Holder" and related "Holder(s) of the Serviced Companion
Loans," as their interests appear under the related Co-Lender Agreement. If the
related Credit File is not already in the possession of such party, it shall be
delivered to the master servicer or special servicer, as the case may be, under
the separate servicing agreement for the Serviced Whole Loan.
Section 3.30 Certain Matters Regarding the Serviced Companion Loans.
Servicing and administration of each Serviced Companion Loan shall
continue hereunder for so long as the corresponding Mortgage Loan or any related
REO Property is part of the Trust Fund or for such longer period as any amounts
payable by the holder of the related Serviced Companion Loan to or for the
benefit of the Trust or any party hereto in accordance with the related
Co-Lender Agreement remain due and owing; provided, however, that if any
Serviced Companion Loan is included in a separate securitization trust, then the
servicing obligations with respect to such Serviced Companion Loan hereunder
will be limited to the extent provided in the related Co-Lender Agreement.
Notwithstanding anything herein to the contrary, with respect to the
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Whole Loan, the parties hereto acknowledge and agree that even
if the ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Mortgage Loan and/or REO Property is no longer part of
the Trust Fund, the servicing and administration of the related Serviced
Companion Loans and/or REO Property shall continue hereunder as if the related
Serviced Companion Loans and/or REO Property were the sole assets under this
Agreement (without any further obligation to make P&I Advances) until such time
as a separate servicing agreement is entered into in accordance with the related
Co-Lender Agreement (it being acknowledged that neither the applicable Servicer
nor the Special Servicer shall be obligated under a separate agreement to which
it is not a party). At such time as a separate servicing agreement is entered
into, all amounts due to such Servicer or Special Servicer, as applicable,
including advances and interest thereon, for the period that the Serviced Whole
Loan was not part of the Trust Fund, but was serviced by such Servicer or the
Special Servicer, as applicable shall be paid to such Servicer or the Special
Servicer upon the execution of a separate servicing agreement by the holder(s)
of such Serviced Whole Loan or as otherwise agreed to by such holder(s) and such
Servicer or the Special Servicer, as applicable.
Nothing herein shall be deemed to override the provisions of the
related Co-Lender Agreement with respect to the rights of the holders of the
related Serviced Companion Loans thereunder. With respect to each Serviced Whole
Loan, in the event of a conflict between this Agreement and the related
Co-Lender Agreement, the related Co-Lender Agreement shall control; provided, in
no event shall the applicable Servicer or Special Servicer take any action or
omit to take any action in accordance with the terms of any Co-Lender Agreement
that would cause such servicer to violate the Servicing Standard or the REMIC
Provisions.
Section 3.31 Litigation Control.
(a) The Special Servicer shall, consistent with the Servicing
Standard, (1) direct, manage, prosecute and/or defend any action brought by a
Borrower against the Trust and/or the Special Servicer and (2) represent the
interests of the Trust in any litigation relating to the rights and obligations
of the Borrower or the Trust, or the enforcement of the obligations of a
Borrower, under the Mortgage Loan documents ("Trust-Related Litigation").
To the extent Servicer No. 1 is named in Trust-Related Litigation,
and the Trust or Special Servicer is not named, in order to effectuate the role
of the Special Servicer as contemplated by the immediately preceding paragraph,
Servicer No. 1 shall (1) notify the Special Servicer of such Trust-Related
Litigation within ten (10) days of Servicer No. 1 receiving service of such
Trust-Related Litigation; (2) provide monthly status reports to the Special
Servicer, regarding such Trust-Related Litigation; (3) seek to have the Trust
replace Servicer No. 1 as the appropriate party to the lawsuit; and (4) so long
as Servicer No. 1 remains a party to the lawsuit, consult with and act at the
direction of the Special Servicer with respect to decisions and resolutions
related to the interests of the Trust in such Trust-Related Litigation,
including but not limited to the selection of counsel, provided however, if
there are claims against Servicer No. 1 and Servicer No. 1 has not determined
that separate counsel is required for such claims, such counsel shall be
reasonably acceptable to Servicer No. 1.
Notwithstanding the right of the Special Servicer to represent the
interests of the Trust in Trust-Related Litigation, and subject to the rights of
the Special Servicer to direct Servicer No. 1's actions in this Section 3.31
below, Servicer No. 1 shall retain the right to make determinations relating to
claims against Servicer No. 1, including but not limited to the right to engage
separate counsel in Servicer No. 1's reasonable discretion, the cost of which
shall be subject to indemnification pursuant to Section 6.03.
Notwithstanding Servicer No. 1's right to make determinations
relating to claims against Servicer No. 1, the Special Servicer shall have the
right at any time to (1) direct Servicer No. 1 to settle any claims brought
against the Trust, including claims asserted against either Servicer No. 1
whether or not the Trust or the Special Servicer is named in any such claims or
Trust-Related Litigation) and (2) otherwise reasonably direct the actions of
Servicer No. 1 relating to claims against Servicer No. 1 (whether or not the
Trust or the Special Servicer is named in any such claims or Trust-Related
Litigation), provided in either case that (A) such settlement or other direction
does not require any admission of liability or wrongdoing on the part of
Servicer No. 1, (B) the cost of such settlement or any resulting judgment is and
shall be paid by the Trust, (C) Servicer No. 1 is and shall be indemnified
pursuant to Section 6.03 hereof for all costs and expenses Servicer No. 1
incurred in defending and settling the Trust-Related Litigation and for any
judgment, (D) any such action taken by Servicer No. 1 at, or in connection with,
the direction of the Special Servicer shall be deemed (as to Servicer No. 1) to
be in compliance with the Servicing Standard and (E) the Special Servicer
provides Servicer No. 1 with assurance reasonably satisfactory to Servicer No. 1
as to the items in clauses (A), (B) and (C).
In the event Servicer No. 1 and the Special Servicer or Trust are
named in litigation, Servicer No. 1 and the Special Servicer shall cooperate
with each other to afford Servicer No. 1 and the Special Servicer the rights
afforded to such party in this Section 3.31.
This Section 3.31 shall not apply in the event the Special Servicer
authorizes Servicer No. 1, and Servicer No. 1 agrees (both authority and
agreement to be in writing), to make certain decisions or control certain
Trust-Related Litigation on behalf of the Trust.
(b) The Special Servicer, with respect to litigation involving any
Specially Serviced Mortgage Loan(s) that were previously serviced by Servicer
No. 2 prior to any related Servicing Transfer Even, and Servicer No. 2, with
respect to litigation involving the non-Specially Serviced Mortgage Loan(s)
serviced by it under this Agreement to the extent such Mortgage Loans are not
then subject to special servicing by the Special Servicer, and where the
applicable servicer contemplates availing itself or the Trustee on behalf of the
Trust Fund of indemnification as provided for under this Agreement, such
servicer shall, for the benefit of the Certificateholders, direct, manage,
prosecute, defend and/or settle any and all claims and litigation ("Litigation
Control") relating to (a) the enforcement of the obligations of a Borrower under
the related loan documents and (b) any action brought against the Trust Fund or
any party to this Agreement with respect to any Mortgage Loan. Such Litigation
Control shall be carried out in accordance with the terms of this Agreement,
including, without limitation, the Servicing Standard. Upon becoming aware of or
being named in any such claims or litigation, Servicer No. 2 shall immediately
notify the Directing Certificateholder and the Trustee of such claims or
litigation. In addition, Servicer No. 2 shall prepare and submit a monthly
status report regarding any Litigation Control matter to the Directing
Certificateholder.
Notwithstanding the foregoing, each of the Special Servicer and
Servicer No. 2, as applicable, shall consult with and keep the Directing
Certificateholder and the Trustee advised of any material development including
without limitation (i) any material decision concerning Litigation Control and
the implementation thereof and (ii) any decision to agree to or propose any
terms of settlement, and shall submit any such development or decision to the
Directing Certificateholder for its approval or consent. Subject to the last
paragraph of this Section 3.31(b), the Special Servicer or Servicer No. 2 shall
not take any action implementing any such material development or decision
described in the preceding sentence unless and until it has notified in writing
the Directing Certificateholder and the Directing Certificateholder has not
objected in writing within five Business Days of having been notified thereof
and having been provided with all information that the Directing
Certificateholder has reasonably requested with respect thereto promptly
following its receipt of the subject notice (it being understood and agreed that
if such written objection has not been received by the Special Servicer or
Servicer No. 2, as applicable, within such five-Business Day period, then the
Directing Certificateholder shall be deemed to have approved the taking of such
action); provided that, in the event that the Special Servicer or Servicer No.
2, as applicable, determines that immediate action is necessary to protect the
interests of the Certificateholders (as a collective whole), the Special
Servicer or Servicer No. 2, as applicable, may take such action without waiting
for the response of the Directing Certificateholder; provided that the Special
Servicer or Servicer No. 2, as applicable, has reasonably determined that the
Directing Certificateholder has received notice of such action in writing.
With respect to any Litigation Control otherwise required to be
exercised hereunder by Servicer No. 2 relating to a Mortgage Loan that has
either: (i) been satisfied or paid in full or (ii) as to which a Final Recovery
Determination has been made, after receiving the required notice from Servicer
No. 2 set forth above that it became aware of or was named in any such claims or
litigation, the Directing Certificateholder may direct in writing that such
Litigation Control nevertheless be exercised by the Special Servicer; provided
that: (a) the Special Servicer has determined, consistent with the Servicing
Standard, that its actions with respect to such obligations (including without
limitation settlements) (i) would be in the best interests of the
Certificateholders, (ii) do not require any admission of liability or wrongdoing
on the part of Servicer No. 2 and (iii) are fully indemnifiable (including
without limitation on behalf of Servicer No. 2) under Section 6.03 and payable
by the Trust; (b) all costs and fees incurred in defending and settling the
claims (including without limitation on behalf of Servicer No. 2) are
indemnified expenses under Section 6.03; and (c) with respect to a settlement,
the Special Servicer has reasonably consulted with Servicer No. 2 prior to such
settlement.
Notwithstanding the foregoing, no advice, direction or objection of
the Directing Certificateholder shall (i) require or cause the Special Servicer
or Servicer No. 2, as applicable, to violate the terms of any Mortgage Loan or
any related intercreditor, co-lender or similar agreement, applicable law or any
provision of this Agreement, including the Special Servicer's and Servicer No.
2's obligation to act in accordance with the Servicing Standard and to maintain
the REMIC status of each of the Lower-Tier REMIC and Upper-Tier REMIC, (ii)
result in an Adverse REMIC Event with respect to either the Lower-Tier REMIC or
Upper-Tier REMIC or an Adverse Grantor Trust Event with respect to the Grantor
Trust, (iii) expose Servicer No. 2, the Special Servicer, the Depositor, any
Mortgage Loan Seller, the Trust Fund, the Trustee or their Affiliates, officers,
directors, shareholders, partners, members, managers, employees or agents to any
claim, suit, or liability for which this Agreement does not provide
indemnification to such party or expose any such party to prosecution for a
criminal offense, or (iv) materially expand the scope of the Special Servicer's
or Servicer No. 2's responsibilities under this Agreement; and neither the
Special Servicer nor Servicer No. 2 will follow any such advice, direction or
objection if given by the Directing Certificateholder or initiate any such
actions.
(c) Notwithstanding the foregoing, (a) in the event that any action,
suit, litigation or proceeding names the Trustee in its individual capacity, or
in the event that any judgment is rendered against the Trustee in its individual
capacity, the Trustee, upon prior written notice to Servicer No. 1 or Special
Servicer, as applicable, may retain counsel and appear in any such proceeding on
its own behalf in order to protect and represent its interests (but not to
otherwise direct, manage or prosecute such litigation or claim), (b) in the
event of any action, suit, litigation or proceeding, other than an action, suit,
litigation or proceeding relating to the enforcement of the obligations of a
Borrower under the related Mortgage Loan Documents or otherwise relating to a
Mortgage Loan or Mortgaged Property, neither Servicer No. 1 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) in the event that any court finds that the
Trustee is a necessary party in respect of any action, suit, litigation or
proceeding relating to or arising from this Agreement or any Mortgage Loan, the
Trustee shall have the right to retain counsel and appear in any such proceeding
on its own behalf in order to protect and represent its interest (but not to
otherwise direct, manage or prosecute such litigation or claim).
Section 3.32 Swap Contracts
(a) On or before the Closing Date, the Trustee, not in its
individual capacity but solely in its capacity as Trustee, on behalf of the
Trust, shall enter into the Swap Contracts and related agreements with each Swap
Counterparty.
(b) Not later than 11:00 a.m. New York City time, on the second
Business Day prior to each Distribution Date, based on the CMSA Loan Periodic
Update File for the related Collection Period provided by the Servicers pursuant
to Section 4.01(b), information obtained by the Trustee from each Swap
Counterparty pursuant to the respective Swap Contract, and subject to the
priorities set forth in Sections 4.01(a), 4.01(b) and 4.01(l) hereof, the
Trustee shall (i) calculate the Class A-MFL Net Swap Payment, if any, and the
Class A-JFL Net Swap Payment, in accordance with the terms of the related Swap
Contract and this Agreement, and (ii) notify the related Swap Counterparty in
accordance with the terms of the respective Swap Contract. In the event the
Trustee fails to receive any Class A-MFL Floating Swap Payment or Class A-JFL
Floating Swap Payment on the Business Day prior to the related Distribution
Date, the Trustee shall provide the applicable Swap Counterparty with notice of
such non-payment no later than 5:00 p.m. New York City time on such date. On the
related Distribution Date following such notice of non-payment, if the Trustee
fails to receive the Class A-MFL Floating Swap Payment by 11:00 a.m. New York
City time on such Distribution Date, a Class A-MFL Swap Default and a Class
A-MFL Distribution Conversion shall occur on such Distribution Date. On the
related Distribution Date following such notice of non-payment, if the Trustee
fails to receive the Class A-JFL Floating Swap Payment by 11:00 a.m. New York
City time on such Distribution Date, a Class A-JFL Swap Default and a Class
A-JFL Distribution Conversion shall occur on such Distribution Date.
(c) On each Distribution Date, the Trustee shall remit the Class
A-MFL Net Swap Payment, and the Class A-JFL Net Swap Payment, if any, to the
related Swap Counterparty from the applicable Floating Rate Account; provided,
that upon and during the continuation of a Class A-MFL Distribution Conversion
or Class A-JFL Distribution Conversion, the Trustee shall not make such payments
to such Counterparty. Promptly upon receipt of any payment or other receipt in
respect of the Swap Contracts, the Trustee shall deposit the same into the
related Floating Rate Account.
(d) The Trustee shall at all times enforce the Trust's rights under
the Swap Contracts. In the event of a Swap Default, the Trustee shall promptly
provide written notice to the Holders of the Class A-MFL Certificates or Class
A-JFL Certificates, as applicable, and shall be required to take such actions
(following the expiration of any applicable grace period specified in the Swap
Contracts), unless otherwise directed in writing by the holders of 25% by
Certificate Balance of the Class A-MFL Certificates and Class A-JFL
Certificates, respectively, to enforce the rights of the Trust under the
applicable Swap Contract as may be permitted by the terms thereof, including
termination thereof, and use any Swap Termination Fees received from the
applicable Swap Counterparty to enter into a replacement interest rate swap
contract on substantially identical terms or on such other terms reasonably
acceptable to the Trustee and the Depositor, with a replacement swap
counterparty that would not cause a Rating Agency Trigger Event and satisfies
the requirements of the applicable Swap Contract, subject, in each case, to
written confirmation by the Rating Agencies that such action will not result in
a qualification, downgrade or withdrawal of the then current ratings of the
Certificates. If the costs attributable to entering into a replacement interest
rate swap contract would exceed the amount of any Swap Termination Fees, a
replacement interest rate swap contract shall not be entered into and any such
proceeds will instead be distributed, pro rata, to the holders of the Class
A-MFL Certificates or Class A-JFL Certificates, as applicable, on the
immediately succeeding Distribution Date. Notwithstanding anything to the
contrary in the Agreement, the Trustee shall be under no obligation to take any
action to enforce the rights of the Trust Fund under a Swap Agreement unless it
is assured, in its sole discretion, that the costs and expenses of such
action(s) will be reimbursed by the Holders of the Class A-MFL Certificates or
Class A-JFL Certificates, as applicable, or another party acceptable to the
Trustee.
Any Class A-MFL Distribution Conversion and Class A-JFL Distribution
Conversion shall become permanent following the determination by the Trustee not
to enter into a replacement interest rate swap contract and distribution of any
Swap Termination Fees to the Holders of the Class A-MFL Certificates and Class
A-JFL Certificates, respectively. Any such Swap Default (or termination of the
Swap Contract) and the resulting Class A-MFL Distribution Conversion or Class
A-MFL Distribution Conversion shall not, in and of itself, constitute an Event
of Default under this Agreement.
Upon any change (or notification to the Trustee that such change is
imminent) in the payment terms on the Class A-MFL Certificates or Class A-JFL
Certificates, including as a result of a Class A-MFL Distribution Conversion or
Class A-JFL Distribution Conversion, termination of a Class A-MFL Distribution
Conversion or Class A-JFL Distribution Conversion, a Swap Default or the cure of
a Swap Default, the Trustee shall promptly notify the Depositor of the change in
payment terms.
(e) In the event that the corresponding Swap Contract is terminated
and no replacement interest rate swap agreement is entered into, the Trustee
shall provide notice of such termination to the Class A-MFL Certificateholders,
which notice shall include: "The Class A-MFL Swap Contract with respect to the
Class A-MFL Certificates is terminated as of [date]. Certificateholders and
beneficial owners that are Plans are advised that the Exemption will no longer
apply to the Class A-MFL Certificates, effective 60 days after the receipt of
this notice. "Exemption", as used in this notice, shall mean, collectively,
Final Authorization Number 97-03E (December 9, 1996) granted by the U.S.
Department of Labor to Deutsche Bank Securities Inc. and Prohibited Transaction
Exemption ("PTE") 93-31, (May 14, 1993) granted to Banc of America Securities
LLC. All other capitalized terms used in this notice shall have the meaning
assigned to them in the Pooling and Servicing Agreement." In the event that the
corresponding Swap Contract is terminated and no replacement interest rate swap
agreement is entered into, the Trustee shall provide notice of such termination
to the Class A-JFL Certificateholders, which notice shall include: "The Class
A-JFL Swap Contract with respect to the Class A-JFL Certificates is terminated
as of [date]. Certificateholders and beneficial owners that are Plans are
advised that the Exemption will no longer apply to the Class A-JFL Certificates,
effective 60 days after the receipt of this notice. "Exemption", as used in this
notice, shall mean, collectively, Final Authorization Number 97-03E (December 9,
1996) granted by the U.S. Department of Labor to Deutsche Bank Securities Inc.,
and Prohibited Transaction Exemption ("PTE") 93-31, (May 14, 1993) granted to
Banc of America Securities LLC. All other capitalized terms used in this notice
shall have the meaning assigned to them in the Pooling and Servicing Agreement."
(f) The Trustee's obligation to pay to the Class A-MFL Swap
Counterparty any funds under the Class A-MFL Swap Contract shall be limited to
the provisions of Section 3.05(g) and in accordance with the priorities set
forth herein. The Trustee will have no obligation on behalf of the Trust Fund to
pay or cause to be paid to the Class A-MFL Swap Counterparty any portion of the
amounts due to the Class A-MFL Swap Counterparty under the Class A-MFL Swap
Contract for any Distribution Date unless and until the related interest payment
on the Class A-MFL Regular Interest for such Distribution Date is actually
received by the Trustee. The Trustee's obligation to pay to the Class A-JFL Swap
Counterparty any funds under the Class A-JFL Swap Contract shall be limited to
the provisions of Section 3.05(g) and in accordance with the priorities set
forth herein. The Trustee will have no obligation on behalf of the Trust Fund to
pay or cause to be paid to the Class A-JFL Swap Counterparty any portion of the
amounts due to the Class A-JFL Swap Counterparty under the Class A-JFL Swap
Contract for any Distribution Date unless and until the related interest payment
on the Class A-JFL Regular Interest for such Distribution Date is actually
received by the Trustee
(g) Any costs and expenses related to the Swap Contracts will not be
payable from the related Floating Rate Account of the Trust and will not
constitute Trust Fund expenses. No party hereunder shall advance any Class A-MFL
Floating Swap Payments or Class A-JFL Floating Swap Payments. Simultaneous with
the delivery to the Certificateholders, the Trustee shall (1) make available to
the related Swap Counterparty the Distribution Date Statement (as defined in the
Swap Contract) and (2) make available or deliver to the Swap Counterparty copies
of any other reports or notices delivered to the Class A-MFL or Class A-JFL
Certificateholders as and to the extent required by the applicable Swap
Contract.
Section 3.33 Matters Relating to Certain Mortgage Loans.
(a) With respect to the Mortgage Loan identified on the Mortgage
Loan Schedule as Northern Tool, at any time that the related Mortgagor requests
approval of a new lease or modification, renewal or extension of an existing
lease (except for any extension of the "Northern Tool Lease," as such term is
defined in the related loan agreement, where approval of the Servicer or Special
Servicer, as applicable, is not required), the Servicer or the Special Servicer,
as applicable, pursuant to Section 3.20(a) or 3.20(b), is required to respond to
such request within 20 Business Days of receipt of all information reasonably
necessary to make a decision with respect to such request, including a copy of
the proposed lease. In the event the Servicer or the Special Servicer, as
applicable, pursuant to Section 3.20(a) or 3.20(b), fails to respond to such
request for approval within the specified period of time, under the terms of the
related loan documents such approval is deemed given.
(b) With respect to the Mortgage Loans identified on the Mortgage
Loan Schedule as ▇▇▇▇▇▇▇▇ Apartments, New Trier Portfolio--Bakersfield, New
Trier Portfolio--Gurnee and New Trier Portfolio--Indianapolis, at any time that
the related Mortgagor requests approval of a proposed lease (or modification,
renewal or extension of an existing lease) and the Servicer or Special Servicer,
as applicable, must respond to such request within 20 Business Days of receipt
of all information reasonably necessary to make a decision with respect to such
request, including a copy of such proposed lease and a written certification
from a responsible officer of the Mortgagor which confirms that (i) such copy of
the proposed lease is true, complete and correct and (ii) the related Mortgagor
has satisfied all conditions pursuant to the loan agreement for such lease
approval. In the event the Servicer or the Special Servicer, as applicable,
pursuant to Section 3.20(a) or 3.20(b), fails to respond to such request for
approval or request additional information within the specified period of time,
under the terms of the related loan documents such approval is deemed given.
(c) With respect to the Mortgage Loan identified on the Mortgage
Loan Schedule as Tecnofarma, at any time that the related Mortgagor requests
approval of a proposed lease or extension or renewal of an existing lease or the
Mortgagor is requesting approval of alterations to the related Mortgaged
Property or other actions under the Tolmar Lease or the Tolmar Replacement Lease
(as such terms are defined in the related loan agreement), the Servicer or
Special Servicer, as applicable, is required to respond to such request within
20 Business Days of receipt by the last of such parties of all such reasonably
necessary information and documentation. In the event the Servicer or Special
Servicer, as applicable, fails to request additional information or to respond
to such request for approval within the specified period of time, under the
terms of the related loan documents such approval is deemed given. If the
Servicer or Special Servicer, as applicable, submits a written request to the
Mortgagor for any additional information or documentation within the 20 Business
Day approval period, such period shall be extended by an additional 10 Business
Days after the date on which the Servicer or Special Servicer, as applicable,
receives such additional supporting documentation and information, and if the
Servicer or Special Servicer fails to responds within such 10-day extension
period, under the terms of the related loan documents such approval is deemed
given.
(d) Also with respect to the Mortgage Loan identified on the
Mortgage Loan Schedule as Tecnofarma, at any time that the related Mortgagor
requests approval of a modification of a Major Lease (as such term is defined in
the related loan agreement), alterations to the related Mortgaged Property or
other actions under the Tolmar Lease or the Tolmar Replacement Lease (as such
terms are defined in the related loan agreement), the Servicer or Special
Servicer, as applicable, is required to respond to such request within 20
Business Days of receipt by the last of such parties of all such reasonably
necessary information and documentation. In the event the Servicer or Special
Servicer, as applicable, fails to request additional information or to respond
to such request for approval within the specified period of time, under the
terms of the related loan documents such approval is deemed given.
(e) With respect to the Mortgage Loan identified on the Mortgage
Loan Schedule as ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, if the Mortgagor is required to obtain
approval from the Servicer or Special Servicer pursuant to Section 5.1.17 of the
related loan agreement, the Servicer or the Special Servicer, as applicable,
pursuant to Section 3.20(a) or 3.20(b), shall be required to respond to such
request within 5 Business Days (which under the related loan agreement shall be
extended for one (1) additional Business Day upon receipt of a second notice
from the Mortgagor). In the event the Servicer or the Special Servicer, as
applicable, fails to request additional information or respond to such request
for approval within the specified period of time set forth in the second notice,
under the terms of the related loan documents such approval is deemed given.
(f) With respect to the Mortgage Loans identified on the Mortgage
Loan Schedule as Columbia Hotel Portfolio - Residence Inn Columbia and Columbia
Hotel Portfolio - Courtyard Columbia, at any time that a Mortgagor requests
approval of a transfer of a tenant-in-common ownership interest as contemplated
by and in accordance with the related Loan Documents, the applicable Servicer
must respond to such request within 10 Business Days of receipt of all
information and the written notice required by the related Loan Documents. In
the event that the applicable Servicer pursuant to Section 3.08(f) fails to
respond to such request for approval or request additional information within
the specified period of time, under the terms of the related loan documents such
approval is deemed given.
Section 3.34 Certain Powers of the Clarion LaGuardia Airport Hotel
Controlling Holder and The Enclave Directing Holder.
(a) Notwithstanding anything in this Agreement to the contrary, with
respect to the Clarion LaGuardia Airport Hotel Whole Loan and The Enclave Whole
Loan, the Clarion LaGuardia Airport Hotel Controlling Holder and The Enclave
Directing Holder, respectively, in each case, in lieu of the Directing
Certificateholder, shall be entitled to exercise all rights of the Directing
Certificateholder under this Agreement with respect to the Clarion LaGuardia
Airport Hotel Whole Loan and The Enclave Whole Loan, as applicable, and any
references to the Directing Certificateholder in this Agreement relating to
actions permitted to be taken only with the consent of the Directing
Certificateholder with respect to the Clarion LaGuardia Airport Hotel Whole Loan
and The Enclave Whole Loan, as applicable, shall be deemed to be references to
the Clarion LaGuardia Airport Hotel Controlling Holder or The Enclave Directing
Holder, as applicable; 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 Clarion LaGuardia Airport Hotel
Controlling Holder or The Enclave Directing Holder), (ii) the Directing
Certificateholder shall also have the right to consult with the Special Servicer
(on a non-binding basis) regarding the Clarion LaGuardia Airport Hotel Whole
Loan and The Enclave Whole Loan, as applicable, and (iii) the Directing
Certificateholder (and not the Clarion LaGuardia Airport Hotel Controlling
Holder) shall be entitled to exercise the Purchase Option set forth in Section
3.18(c) with respect to the Clarion LaGuardia Airport Hotel Whole Loan. In
addition, the applicable Clarion LaGuardia Airport Hotel Controlling Holder and
The Enclave Directing Holder, as applicable, shall have any rights, whether or
not additional, that are specified in the Clarion LaGuardia Airport Hotel
Co-Lender Agreement or the Enclave Co-Lender Agreement, as applicable.
(b) In addition, if a Clarion LaGuardia Airport Hotel Control
Appraisal Period exists with respect to the Clarion LaGuardia Airport Hotel
Whole Loan, then the Clarion LaGuardia Airport Hotel 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 this Agreement or the
Clarion LaGuardia Airport Hotel Co-Lender Agreement with respect to the Clarion
LaGuardia Airport Hotel Whole Loan, subject to the provisions of the Clarion
LaGuardia Airport Hotel Co-Lender Agreement and the limitations of this
Agreement; provided, however, the Clarion LaGuardia Airport Hotel B Note Holder
shall nevertheless retain the right to receive distributions and (if the Clarion
LaGuardia Airport Hotel B Note Holder is not the borrower or an affiliate
thereof) notices and reports under this Agreement.
(c) Within five Business Days of receipt of written notice that a
Clarion LaGuardia Airport Hotel Controlling Holder has been selected or
replaced, the Trustee shall deliver notice to the applicable Servicer and the
Special Servicer, of such Clarion LaGuardia Airport Hotel Controlling Holder's
identity (upon which notice the Servicer and Special Servicer may conclusively
rely).
(d) With respect to the Clarion LaGuardia Airport Hotel Whole Loan,
notwithstanding anything to the contrary contained herein, the related Clarion
LaGuardia Airport Hotel Controlling Holder shall have the right to cure monetary
and non-monetary defaults by the related borrower to the extent provided in the
Clarion LaGuardia Airport Hotel Co-Lender Agreement.
(e) In addition, if a Noteholder Control Appraisal Event (as such
term is defined in The Enclave Co-Lender Agreement) exists with respect to The
Enclave Whole Loan, then The Enclave Directing Holder shall be the Directing
Certificateholder who shall be authorized to exercise any of its approval and
consent rights and powers provided for in this Agreement or The Enclave
Co-Lender Agreement with respect to The Enclave Whole Loan, subject to the
provisions of The Enclave Co-Lender Agreement and the limitations of this
Agreement; provided, however, The Enclave B Note Holder shall nevertheless
retain the right to receive distributions and (if The Enclave B Note Holder is
not the borrower or an affiliate thereof) notices and reports under this
Agreement.
(f) With respect to The Enclave Whole Loan, notwithstanding anything
to the contrary contained herein, The Enclave Directing Holder shall have the
right to cure monetary and non-monetary defaults by the related borrower to the
extent provided in The Enclave Co-Lender Agreement.
[End of Article III]
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions.
(a) On each Distribution Date, to the extent of the Available
Distribution Amount for such Distribution Date, the Trustee shall transfer the
Lower-Tier Distribution Amount from the Lower-Tier Distribution Account to the
Upper-Tier Distribution Account in the amounts and priorities set forth in
Section 4.01(b) with respect to each class of Uncertificated Lower-Tier
Interests, and immediately thereafter, shall make distributions thereof from the
Upper-Tier Distribution Account in the following order of priority, satisfying
in full, to the extent required and possible, each priority before making any
distribution with respect to any succeeding priority:
(i) first, concurrently, (A) to the Holders of the Class A-1
Certificates, the Class A-2 Certificates, the Class A-3 Certificates, the
Class A-AB Certificates and the Class A-4 Certificates, pro rata (based
upon the Distributable Certificate Interest for each such Class for such
Distribution Date), in respect of interest, from the Loan Group 1
Available Distribution Amount and up to an amount equal to the aggregate
Interest Distribution Amount in respect of such Classes of Certificates
for such Distribution Date, (B) to the Holders of the Class A-1A
Certificates, in respect of interest, from the Loan Group 2 Available
Distribution Amount and up to an amount equal to the Interest Distribution
Amount in respect of such Class of Certificates for such Distribution Date
and (C) to the Holders of the Class X-C and Class X-P Certificates in
respect of interest, up to an amount equal to the Interest Distribution
Amount payable in respect of such Class of Certificates for such
Distribution Date; provided, however, that if the Loan Group 1 Available
Distribution Amount and/or the Loan Group 2 Available Distribution Amount
is insufficient to pay in full the Interest Distribution Amount provided
above, payable in respect of any Class A, Class X-C or Class X-P
Certificates on such Distribution Date, then the entire Available
Distribution Amount shall be applied to make distributions of interest to
the Holders of the respective Classes of the Class A Class X-C and Class
X-P Certificates, up to an amount equal to, and pro rata as among such
Classes in accordance with, the Interest Distribution Amount in respect of
each such Class of Certificates for such Distribution Date;
(ii) second, to the Holders of the Class A-1 Certificates, the Class
A-2 Certificates, the Class A-3 Certificates, the Class A-AB Certificates,
the Class A-4 Certificates and the Class A-1A Certificates in reduction of
the Certificate Balances thereof (A) (1) first, to the Holders of the
Class A-AB Certificates, in an amount up to the Loan Group 1 Principal
Distribution Amount and, after the outstanding Certificate Balance of the
Class A-1A Certificates has been reduced to zero, the Loan Group 2
Principal Distribution Amount remaining after payments to the Holders of
the Class A-1A have been made on such Distribution Date, until the
outstanding Certificate Balance of the Class A-AB Certificates is reduced
to the Class A-AB Planned Principal Balance; (2) second, to the Holders of
the Class A-1 Certificates, in an amount up to the Loan Group 1 Principal
Distribution Amount (or the portion of it remaining after distributions on
the Class A-AB Certificates) and, after the outstanding Certificate
Balance of the Class A-1A Certificates has been reduced to zero, the Loan
Group 2 Principal Distribution Amount remaining after payments to the
Holders of the Class A-1A and Class A-AB Certificates have been made on
such Distribution Date, until the Certificate 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 (or the portion of it remaining after distributions on
the Class A-AB and Class A-1 Certificates) and, after the outstanding
Certificate Balance of the Class A-1A Certificates has been reduced to
zero, the Loan Group 2 Principal Distribution Amount remaining after
payments to the Holders of the Class A-1A, Class A-AB and Class A-1
Certificates have been made on such Distribution Date, until the
outstanding Certificate Balance of the Class A-2 Certificates has 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 (or the
portion of it remaining after distributions on the Class A-AB, Class A-1
and Class A-2 Certificates) and, after the outstanding Certificate Balance
of the Class A-1A Certificates has been reduced to zero, the Loan Group 2
Principal Distribution Amount remaining after payments to the Holders of
the Class A-1A, Class A-AB, Class A-1 and Class A-2 Certificates have been
made on such Distribution Date, until the outstanding Certificate Balance
of the Class A-3 Certificates has been reduced to zero; (5) fifth, to the
Holders of the Class A-AB Certificates, in an amount up to the Loan Group
1 Principal Distribution Amount (or the portion of it remaining after
distributions on the Class A-AB (pursuant to clause (ii)(A)(1)), Class
A-1, Class A-2 and Class A-3 Certificates) and, after the outstanding
Certificate Balance of the Class A-1A Certificates has been reduced to
zero, the Loan Group 2 Principal Distribution Amount remaining after
payments to the Holders of the Class A-1A, Class A-AB (pursuant to clause
(ii)(A)(1)), Class A-1, Class A-2 and Class A-3 Certificates have been
made on such Distribution Date, until the outstanding Certificate Balance
of the Class A-AB Certificates has been reduced to zero; and (6) sixth, to
the Holders of the Class A-4 Certificates, in an amount up to the Loan
Group 1 Principal Distribution Amount (or the portion of it remaining
after distributions on the Class A-AB, Class A-1, Class A-2 and Class A-3
Certificates) and, after the outstanding Certificate Balance of the Class
A-1A Certificates has been reduced to zero, the Loan Group 2 Principal
Distribution Amount remaining after payments to the Holders of the Class
A-1A, Class A-AB, Class A-1, Class A-2 and Class A-3 Certificates have
been made on such Distribution Date, until the outstanding Certificate
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 Certificate Balance
of the Class A-4 Certificates has been reduced to zero, the Loan Group 1
Principal Distribution Amount remaining after payments to the Holders of
the Class A-AB, Class A-1, Class A-2, Class A-3 and Class A-4 Certificates
have been made on such Distribution Date, until the Certificate Balance of
the Class A-1A Certificates has been reduced to zero;
(iii) third, to the Holders of the Class A-1 Certificates, the Class
A-2 Certificates, the Class A-3 Certificates, the Class A-AB Certificates,
the Class A-4 Certificates and the Class A-1A Certificates, pro rata
(based upon the aggregate unreimbursed Collateral Support Deficit
allocated to each such Class), until all amounts of Collateral Support
Deficit previously allocated to such Classes, but not previously
reimbursed, have been reimbursed in full;
(iv) fourth, to the Holders of the Class A-M Certificates and the
Class A-MFL Regular Interest, pro rata (based on their respective interest
entitlements), in respect of interest, up to an amount equal to the
aggregate Interest Distribution Amount in respect of such Class of
Certificates or the Class A-MFL Regular Interest for such Distribution
Date;
(v) fifth, after the Certificate Balances of the Class A
Certificates have been reduced to zero, to the Holders of the Class A-M
Certificates and Class A-MFL Regular Interest, pro rata (based on their
outstanding Certificate Balances) in reduction of the Certificate Balance
thereof, an amount equal to the Principal Distribution Amount (or the
portion thereof remaining after any distributions in respect of the Class
A Certificates on such Distribution Date), until the outstanding
Certificate Balances of the Class A-M Certificates and Class A-MFL Regular
Interest have been reduced to zero;
(vi) sixth, to the Holders of the Class A-M Certificates and Class
A-MFL Regular Interest, pro rata, (based on the aggregate unreimbursed
Collateral Support Deficit allocated to that Class) until all amounts of
Collateral Support Deficit previously allocated to the Class A-M
Certificates and Class A-MFL Regular Interest, but not previously
reimbursed, have been reimbursed in full;
(vii) seventh, to the Holders of the Class A-J Certificates and the
Class A-JFL Regular Interest, pro rata (based on their respective interest
entitlements), in respect of interest, up to an amount equal to the
aggregate Interest Distribution Amount in respect of such Class of
Certificates or the Class A-JFL Regular Interest for such Distribution
Date;
(viii) eighth, after the Certificate Balances of the Class A and
Class A-M Certificates and Class A-MFL Regular Interest have been reduced
to zero, to the Holders of the Class A-J Certificates and Class A-JFL
Regular Interest, pro rata (based on their outstanding Certificate
Balances), an amount equal to the Principal Distribution Amount (or the
portion thereof remaining after any distributions in respect of the Class
A and Class A-M Certificates and Class A-MFL Regular Interest on such
Distribution Date), until the outstanding Certificate Balance of the Class
A-J Certificates and Class A-JFL Regular Interest have been reduced to
zero;
(ix) ninth, to the Holders of the Class A-J Certificates and Class
A-JFL Regular Interest, pro rata, (based on the aggregate unreimbursed
Collateral Support Deficit allocated to that Class), until all amounts of
Collateral Support Deficit previously allocated to the Class A-J
Certificates and Class A-JFL Regular Interest, but not previously
reimbursed, have been reimbursed in full;
(x) tenth, to the Holders of the Class B Certificates, in respect of
interest, up to an amount equal to the aggregate Interest Distribution
Amount in respect of such Class of Certificates for such Distribution
Date;
(xi) eleventh, after the Certificate Balances of the Class A, Class
A-M and Class A-J Certificates and the Class A-MFL Regular Interest and
Class A-JFL Regular Interest have been reduced to zero, to the Holders of
the Class B Certificates, in reduction of the Certificate Balance thereof,
an amount equal to the Principal Distribution Amount (or the portion
thereof remaining after any distributions in respect of the Class A, Class
A-M and Class A-J Certificates and the Class A-MFL Regular Interest and
Class A-JFL Regular Interest on such Distribution Date), until the
outstanding Certificate Balance of the Class B Certificates has been
reduced to zero;
(xii) twelfth, to the Holders of the Class B Certificates, until all
amounts of Collateral Support Deficit previously allocated to the Class B
Certificates, but not previously reimbursed, have been reimbursed in full;
(xiii) thirteenth, to the Holders of the Class C Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xiv) fourteenth, after the Certificate Balances of the Class A,
Class A-M, Class A-J and Class B Certificates and the Class A-MFL Regular
Interest and Class A-JFL Regular Interest have been reduced to zero, to
the Holders of the Class C Certificates, in reduction of the Certificate
Balance thereof, an amount equal to the Principal Distribution Amount (or
the portion thereof remaining after any distributions in respect of the
Class A, Class A-M, Class A-J and Class B Certificates and the Class A-MFL
Regular Interest and Class A-JFL Regular Interest on such Distribution
Date), until the outstanding Certificate Balance of the Class C
Certificates has been reduced to zero;
(xv) fifteenth, to the Holders of the Class C Certificates, until
all amounts of Collateral Support Deficit previously allocated to the
Class C Certificates, but not previously reimbursed, have been reimbursed
in full;
(xvi) sixteenth, to the Holders of the Class D Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xvii) seventeenth, after the Certificate Balances of the Class A,
Class A-M, Class A-J, Class B and Class C Certificates and the Class A-MFL
Regular Interest and Class A-JFL Regular Interest have been reduced to
zero, to the Holders of the Class D Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal Distribution
Amount (or the portion thereof remaining after any distributions in
respect of the Class A, Class A-M, Class A-J, Class B and Class C
Certificates and the Class A-MFL Regular Interest and Class A-JFL Regular
Interest on such Distribution Date), until the outstanding Certificate
Balance of the Class D Certificates has been reduced to zero;
(xviii) eighteenth, to the Holders of the Class D Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class D Certificates, but not previously reimbursed, have been
reimbursed in full;
(xix) nineteenth, to the Holders of the Class E Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xx) twentieth, after the Certificate Balances of the Class A, Class
A-M, Class A-J, Class B, Class C and Class D Certificates and the Class
A-MFL Regular Interest and Class A-JFL Regular Interest have been reduced
to zero, to the Holders of the Class E Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal Distribution
Amount (or the portion thereof remaining after any distributions in
respect of the Class A, Class A-M, Class A-J, Class B, Class C and Class D
Certificates and the Class A-MFL Regular Interest and Class A-JFL Regular
Interest on such Distribution Date), until the outstanding Certificate
Balance of the Class E Certificates has been reduced to zero;
(xxi) twenty-first, to the Holders of the Class E Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class E Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxii) twenty-second, to the Holders of the Class F Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxiii) twenty-third, after the Certificate Balances of the Class A,
Class A-M, Class A-J, Class B, Class C, Class D and Class E Certificates
have been reduced to zero, to the Holders of the Class F Certificates and
the Class A-MFL Regular Interest and Class A-JFL Regular Interest, in
reduction of the Certificate Balance thereof, an amount equal to the
Principal Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A, Class A-M, Class A-J, Class B,
Class C, Class D and Class E Certificates and the Class A-MFL Regular
Interest and Class A-JFL Regular Interest on such Distribution Date),
until the outstanding Certificate Balance of the Class F Certificates has
been reduced to zero;
(xxiv) twenty-fourth, to the Holders of the Class F Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class F Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxv) twenty-fifth, to the Holders of the Class G Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxvi) twenty-sixth, after the Certificate Balances of the Class A,
Class A-M, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-MFL Regular Interest and Class A-JFL Regular
Interest have been reduced to zero, to the Holders of the Class G
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A, Class A-M,
Class A-J, Class B, Class C, Class D, Class E and Class F Certificates and
the Class A-MFL Regular Interest and Class A-JFL Regular Interest on such
Distribution Date), until the outstanding Certificate Balance of the Class
G Certificates has been reduced to zero;
(xxvii) twenty-seventh, to the Holders of the Class G Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class G Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxviii) twenty-eighth, to the Holders of the Class H Certificates
in respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxix) twenty-ninth, after the Certificate Balances of the Class A,
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 the Holders of the
Class H Certificates and the Class A-MFL Regular Interest and Class A-JFL
Regular Interest, in reduction of the Certificate Balance thereof, an
amount equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A, Class A-M,
Class A-J, Class B, Class C, Class D, Class E, Class F and Class G
Certificates and the Class A-MFL Regular Interest and Class A-JFL Regular
Interest on such Distribution Date), until the outstanding Certificate
Balance of the Class H Certificates has been reduced to zero;
(xxx) thirtieth, to the Holders of the Class H Certificates, until
all amounts of Collateral Support Deficit previously allocated to the
Class H Certificates, but not previously reimbursed, have been reimbursed
in full;
(xxxi) thirty-first, to the Holders of the Class J Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxxii) thirty-second, after the Certificate Balances of the Class
A, Class A-M, Class A-J, Class B, Class C, Class D, Class E, Class F,
Class G and Class H Certificates and the Class A-MFL Regular Interest and
Class A-JFL Regular Interest have been reduced to zero, to the Holders of
the Class J Certificates, in reduction of the Certificate Balance thereof,
an amount equal to the Principal Distribution Amount (or the portion
thereof remaining after any distributions in respect of the Class A, Class
A-M, Class A-J, Class B, Class C, Class D, Class E, Class F, Class G and
Class H Certificates and the Class A-MFL Regular Interest and Class A-JFL
Regular Interest on such Distribution Date), until the outstanding
Certificate Balance of the Class J Certificates has been reduced to zero;
(xxxiii) thirty-third, to the Holders of the Class J Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class J Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxxiv) thirty-fourth, to the Holders of the Class K Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxxv) thirty-fifth, after the Certificate Balances of the Class A,
Class A-M, Class A-J, Class B, Class C, Class D, Class E, Class F, Class
G, Class H and Class J Certificates and the Class A-MFL Regular Interest
and Class A-JFL Regular Interest have been reduced to zero, to the Holders
of the Class K Certificates, in reduction of the Certificate Balance
thereof, an amount equal to the Principal Distribution Amount (or the
portion thereof remaining after any distributions in respect of the Class
A, Class A-M, Class A-J, Class B, Class C, Class D, Class E, Class F,
Class G, Class H and Class J Certificates and the Class A-MFL Regular
Interest and Class A-JFL Regular Interest on such Distribution Date),
until the outstanding Certificate Balance of the Class K Certificates has
been reduced to zero;
(xxxvi) thirty-sixth, to the Holders of the Class K Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class K Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxxvii) thirty-seventh, to the Holders of the Class L Certificates
in respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxxviii) thirty-eighth, after the Certificate Balances of the Class
A, Class A-M, Class A-J, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class J and Class K Certificates and the Class A-MFL
Regular Interest and Class A-JFL Regular Interest have been reduced to
zero, to the Holders of the Class L Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal Distribution
Amount (or the portion thereof remaining after any distributions in
respect of the Class A, Class A-M, Class A-J, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J and Class K Certificates and
the Class A-MFL Regular Interest and Class A-JFL Regular Interest on such
Distribution Date), until the outstanding Certificate Balance of the Class
L Certificates has been reduced to zero;
(xxxix) thirty-ninth, to the Holders of the Class L Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class L Certificates, but not previously reimbursed, have been
reimbursed in full;
(xl) fortieth, to the Holders of the Class M Certificates in respect
of interest, up to an amount equal to the aggregate Interest Distribution
Amount in respect of such Class of Certificates for such Distribution
Date;
(xli) forty-first, after the Certificate Balances of the Class A,
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 and the Class A-MFL
Regular Interest and Class A-JFL Regular Interest have been reduced to
zero, to the Holders of the Class M Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal Distribution
Amount (or the portion thereof remaining after any distributions in
respect of the Class A, 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 and the Class A-MFL Regular Interest and Class A-JFL Regular
Interest on such Distribution Date), until the outstanding Certificate
Balance of the Class M Certificates has been reduced to zero;
(xlii) forty-second, to the Holders of the Class M Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class M Certificates, but not previously reimbursed, have been
reimbursed in full;
(xliii) forty-third, to the Holders of the Class N Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xliv) forty-fourth, after the Certificate Balances of the Class A,
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 and the
Class A-MFL Regular Interest and Class A-JFL Regular Interest have been
reduced to zero, to the Holders of the Class N Certificates, in reduction
of the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A, 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 and the Class A-MFL Regular Interest and
Class A-JFL Regular Interest on such Distribution Date), until the
outstanding Certificate Balance of the Class N Certificates has been
reduced to zero;
(xlv) forty-fifth, to the Holders of the Class N Certificates, until
all amounts of Collateral Support Deficit previously allocated to the
Class N Certificates, but not previously reimbursed, have been reimbursed
in full;
(xlvi) forty-sixth, to the Holders of the Class O Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xlvii) forty-seventh, after the Certificate Balances of the Class
A, 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 and the Class A-MFL Regular Interest and Class A-JFL Regular
Interest have been reduced to zero, to the Holders of the Class O
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A, 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 and the Class
A-MFL Regular Interest and Class A-JFL Regular Interest on such
Distribution Date), until the outstanding Certificate Balance of the Class
O Certificates has been reduced to zero;
(xlviii) forty-eighth, to the Holders of the Class O Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class O Certificates, but not previously reimbursed, have been
reimbursed in full;
(xlix) forty-ninth, to the Holders of the Class P Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(l) fiftieth, after the Certificate Balances of the Class A, 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 and the Class A-MFL Regular Interest and Class A-JFL Regular
Interest have been reduced to zero, to the Holders of the Class P
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A, 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 and
the Class A-MFL Regular Interest and Class A-JFL Regular Interest on such
Distribution Date), until the outstanding Certificate Balance of the Class
P Certificates has been reduced to zero;
(li) fifty-first, to the Holders of the Class P Certificates, until
all amounts of Collateral Support Deficit previously allocated to the
Class P Certificates, but not previously reimbursed, have been reimbursed
in full;
(lii) fifty-second, to the Holders of the Class Q Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(liii) fifty-third, after the Certificate Balances of the Class A,
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 and the Class A-MFL Regular Interest and Class A-JFL
Regular Interest have been reduced to zero, to the Holders of the Class Q
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A, 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 and the Class A-MFL Regular Interest and Class A-JFL Regular
Interest on such Distribution Date), until the outstanding Certificate
Balance of the Class Q Certificates has been reduced to zero;
(liv) fifty-fourth, to the Holders of the Class Q Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class Q Certificates, but not previously reimbursed, have been
reimbursed in full;
(lv) fifty-fifth, to the Holders of the Class T Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(lvi) fifty-sixth, after the Certificate Balances of the Class A,
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 and the Class A-MFL Regular Interest and Class
A-JFL Regular Interest have been reduced to zero, to the Holders of the
Class T Certificates, in reduction of the Certificate Balance thereof, an
amount equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A, 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 and the Class A-MFL Regular Interest and Class A-JFL Regular
Interest on such Distribution Date), until the outstanding Certificate
Balance of the Class T Certificates has been reduced to zero;
(lvii) fifty-seventh, to the Holders of the Class T Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class T Certificates, but not previously reimbursed, have been
reimbursed in full; and
(lviii) fifty-eighth, to the Holders of the Class R Certificates,
the amount, if any, of the Available Distribution Amount remaining in the
Upper-Tier Distribution Account with respect to such Distribution Date.
On and after the Distribution Date on which the Certificate Balances
of the Subordinate Certificates (other than the Class A-MFL and Class A-JFL
Certificates) and the Class A-MFL Regular Interest and Class A-JFL Regular
Interest have all been reduced to zero as a result of losses on the Mortgage
Loans or have been deemed to be reduced to zero as a result of Appraisal
Reductions (without regard to any amounts of Collateral Support Deficit
remaining unreimbursed), the Principal Distribution Amount will be distributed,
pro rata (based upon Certificate Balances), among the Class A Certificates
without regard to the priorities set forth in Section 4.01(a)(ii).
(b) On each Distribution Date, each Uncertificated Lower-Tier
Interest (other than the Class LA-1-1, Class LA-1-2, Class LA-1-3, Class LA-1-4,
Class LA-2-1, Class LA-2-2, Class LA-2-3, Class LA-2-4, Class LA-2-5, Class
LA-2-6, Class LA-3-1, Class LA-3-2, Class LA-4-1, Class LA-4-2, Class LA-4-3,
Class LA-4-4, Class LA-4-5, Class LA-4-6, Class LA-1A-1, Class LA-1A-2, Class
LA-1A-3, Class LA-1A-4, Class LA-1A-5, Class LA-1A-6, Class LA-1A-7, Class
LA-1A-8, Class LA-1A-9, Class LA-1A-10, Class LA-1A-11, Class LA-1A-12, Class
LA-1A-13, Class LA-1A-14, Class LA-1A-15, Class LD-1, Class LD-2, Class LE-1,
Class LE-2, Class LE-3, Class LF-1, Class LF-2, Class LG-1, Class LG-2, Class
LG-3, Class LH-1, Class LH-2, Class LJ-1, Class LJ-2, Class LK-1, Class LK-2,
Class LL-1 and Class LL-2 Uncertificated Lower-Tier Interests) shall be deemed
to receive distributions in respect of principal or reimbursement of Collateral
Support Deficit in an amount equal to the amount of principal or reimbursement
of Collateral Support Deficit actually distributable to its respective Related
Certificates as provided in Sections 4.01(a), (c) and (e). All distributions
made in respect of any Class of Certificates or the Class A-MFL Regular Interest
or Class A-JFL Regular Interest on each Distribution Date pursuant to Section
4.01(a) shall be deemed to have first been distributed from the Lower-Tier REMIC
to the Upper-Tier REMIC in respect of its Related Uncertificated Lower-Tier
Interest; provided, that interest shall be deemed to have been distributed pro
rata among two or more Related Uncertificated Lower-Tier Interests that
correspond to a Class of Related Certificates and pro rata to the Uncertificated
Lower-Tier Interests that correspond to the Related Components in the case of
Class X-C and Class X-P Certificates; provided, further, that distributions of
principal actually distributable to its respective Related Certificates as
provided in Sections 4.01(a), (c) and (e):
(i) with respect to the Class A-1 Certificates, shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier
REMIC in respect of Class LA-1-1 Uncertificated Lower-Tier Interest;
second, to Class LA-1-2 Uncertificated Lower-Tier Interest; third, to
Class LA-1-3 Uncertificated Lower Tier Interest; and fourth, to Class
LA-1-4 Uncertificated Lower-Tier Interest; in each case, until their
respective Lower-Tier Principal Amounts are reduced to zero;
(ii) with respect to the Class A-2 Certificates, shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier
REMIC in respect of Class LA-2-1 Uncertificated Lower-Tier Interest;
second, to Class LA-2-2 Uncertificated Lower-Tier Interest; third, to
Class LA-2-3 Uncertificated Lower-Tier Interest; fourth, to Class LA-2-4
Uncertificated Lower-Tier Interest; fifth, to Class LA-2-5 Uncertificated
Lower-Tier Interest; and sixth, fifth, to Class LA-2-6 Uncertificated
Lower-Tier Interest; in each case, until their respective Lower-Tier
Principal Amounts are reduced to zero;
(iii) with respect to the Class A-3 Certificates, shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier
REMIC in respect of Class LA-3-1 Uncertificated Lower-Tier Interest; and
second, to Class LA-3-2 Uncertificated Lower-Tier Interest; in each case,
until their respective Lower-Tier Principal Amounts are reduced to zero;
(iv) with respect to the Class A-4 Certificates, shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier
REMIC in respect of Class LA-4-1 Uncertificated Lower-Tier Interest;
second, to Class LA-4-2 Uncertificated Lower-Tier Interest; third, to
Class LA-4-3 Uncertificated Lower-Tier Interest; fourth, to Class LA-4-4
Uncertificated Lower-Tier Interest; fifth, to Class LA-4-5 Uncertificated
Lower-Tier Interest; and sixth, fifth, to Class LA-4-6 Uncertificated
Lower-Tier Interest; in each case, until their respective Lower-Tier
Principal Amounts are reduced to zero;
(v) with respect to the Class A-1A Certificates, shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier
REMIC in respect of Class LA-1A-1 Uncertificated Lower-Tier Interest;
second, to Class LA-1A-2 Uncertificated Lower-Tier Interest; third, to
Class LA-1A-3 Uncertificated Lower-Tier Interest; fourth, to Class LA-1A-4
Uncertificated Lower-Tier Interest; fifth, to Class LA-1A-5 Uncertificated
Lower-Tier Interest; sixth, to Class LA-1A-6 Uncertificated Lower-Tier
Interest; seventh, to Class LA-1A-7 Uncertificated Lower-Tier Interest;
eighth, to Class LA-1A-8 Uncertificated Lower-Tier Interest; ninth, to
Class LA-1A-9 Uncertificated Lower-Tier Interest; tenth, to Class LA-1A-10
Uncertificated Lower-Tier Interest; eleventh, to Class LA-1A-11
Uncertificated Lower-Tier Interest; twelfth, to Class LA-1A-12
Uncertificated Lower-Tier Interest; thirteenth, to Class LA-1A-13
Uncertificated Lower-Tier Interest; fourteenth, to Class LA-1A-14
Uncertificated Lower-Tier Interest; and fifteenth, to Class LA-1A-15
Uncertificated Lower-Tier Interest; in each case, until their respective
Lower-Tier Principal Amounts are reduced to zero;
(vi) with respect to the Class D Certificates, shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier
REMIC in respect of Class LD-1 Uncertificated Lower-Tier Interest; and
second, to Class LD-2 Uncertificated Lower-Tier Interest; in each case,
until their respective Lower-Tier Principal Amounts are reduced to zero;
(vii) with respect to the Class E Certificates, shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier
REMIC in respect of Class LE-1 Uncertificated Lower-Tier Interest; second,
to Class LE-2 Uncertificated Lower-Tier Interest; third, to Class LE-3
Uncertificated Lower-Tier Interest; and fourth to Class LE-4
Uncertificated Lower-Tier Interest, in each case, until their respective
Lower-Tier Principal Amounts are reduced to zero;
(viii) with respect to the Class F Certificates, shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier
REMIC in respect of Class LF-1 Uncertificated Lower-Tier Interest; and
second, to Class LF-2 Uncertificated Lower-Tier Interest, in each case,
until their respective Lower-Tier Principal Amounts are reduced to zero;
(ix) with respect to the Class G Certificates, shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier
REMIC in respect of Class LG-1 Uncertificated Lower-Tier Interest; second,
to Class LG-2 Uncertificated Lower-Tier Interest; and third, to Class LG-3
Uncertificated Lower-Tier Interest in each case, until their respective
Lower-Tier Principal Amounts are reduced to zero;
(x) with respect to the Class H Certificates, shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier
REMIC in respect of Class LH-1 Uncertificated Lower-Tier Interest; and
second, to Class LH-2 Uncertificated Lower-Tier Interest; in each case,
until their respective Lower-Tier Principal Amounts are reduced to zero;
(xi) with respect to the Class J Certificates, shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier
REMIC in respect of Class LJ-1 Uncertificated Lower-Tier Interest; and
second, to Class LJ-2 Uncertificated Lower-Tier Interest; in each case,
until their respective Lower-Tier Principal Amounts are reduced to zero;
(xii) with respect to the Class K Certificates, shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier
REMIC in respect of Class LK-1 Uncertificated Lower-Tier Interest; and
second, to Class LK-2 Uncertificated Lower-Tier Interest; in each case,
until their respective Lower-Tier Principal Amounts are reduced to zero;
and
(xiii) with respect to the Class L Certificates, shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier
REMIC in respect of Class LL-1 Uncertificated Lower-Tier Interest; and
second, to Class LL-2 Uncertificated Lower-Tier Interest; in each case,
until their respective Lower-Tier Principal Amounts are reduced to zero.
On each Distribution Date, the Class LA-1-1, Class LA-1-2, Class
LA-1-3 and Class LA-1-4 Uncertificated Lower-Tier Interests shall be deemed to
receive distributions from the Lower-Tier Distribution Account in respect of
reimbursement of Collateral Support Deficit distributable to the Class A-1
Certificates as provided in Sections 4.01(a) and (c) on a pro rata basis (based
on the aggregate Collateral Support Deficit previously allocated to such
Uncertificated Lower-Tier Interests). On each Distribution Date, the Class
LA-2-1, Class LA-2-2, Class LA-2-3, Class LA-2-4, Class LA-2-5 and Class LA-2-6
Uncertificated Lower-Tier Interests shall be deemed to receive distributions
from the Lower-Tier Distribution Account in respect of reimbursement of
Collateral Support Deficit distributable to the Class A-2 Certificates as
provided in Sections 4.01(a) and (c) on a pro rata basis (based on the aggregate
Collateral Support Deficit previously allocated to such Uncertificated
Lower-Tier Interests and not previously reimbursed). On each Distribution Date,
the Class LA-3-1 and Class LA-3-2 Uncertificated Lower-Tier Interests shall be
deemed to receive distributions from the Lower-Tier Distribution Account in
respect of reimbursement of Collateral Support Deficit distributable to the
Class A-3 Certificates as provided in Sections 4.01(a) and (c) on a pro rata
basis (based on the aggregate Collateral Support Deficit previously allocated to
such Uncertificated Lower-Tier Interests and not previously reimbursed). On each
Distribution Date, the Class LA-4-1, Class LA-4-2, Class LA-4-3, Class LA-4-4,
Class LA-4-5 and Class LA-4-6 Uncertificated Lower-Tier Interests shall be
deemed to receive distributions from the Lower-Tier Distribution Account in
respect of reimbursement of Collateral Support Deficit distributable to the
Class A-4 Certificates as provided in Sections 4.01(a) and (c) on a pro rata
basis (based on the aggregate Collateral Support Deficit previously allocated to
such Uncertificated Lower-Tier Interests and not previously reimbursed). On each
Distribution Date, the Class LA-1A-1, Class LA-1A-2, Class LA-1A-3, Class
LA-1A-4, Class LA-1A-5, Class LA-1A-6, Class LA-1A-7, Class LA-1A-8, Class
LA-1A-9, Class LA-1A-10, Class LA-1A-11, Class LA-1A-12, Class LA-1A-13, Class
LA-1A-14 and Class LA-1A-15 Uncertificated Lower-Tier Interests shall be deemed
to receive distributions from the Lower-Tier Distribution Account in respect of
reimbursement of Collateral Support Deficit distributable to the Class A-1A
Certificates as provided in Sections 4.01(a) and (c) on a pro rata basis (based
on the aggregate Collateral Support Deficit previously allocated to such
Uncertificated Lower-Tier Interests). On each Distribution Date, the Class LD-1
and Class LD-2 Uncertificated Lower-Tier Interests shall be deemed to receive
distributions from the Lower-Tier Distribution Account in respect of
reimbursement of Collateral Support Deficit distributable to the Class D
Certificates as provided in Sections 4.01(a) and (c) on a pro rata basis (based
on the aggregate Collateral Support Deficit previously allocated to such
Uncertificated Lower-Tier Interests and not previously reimbursed). On each
Distribution Date, the Class LE-1, Class LE-2 and Class LE-3 Uncertificated
Lower-Tier Interests shall be deemed to receive distributions from the
Lower-Tier Distribution Account in respect of reimbursement of Collateral
Support Deficit distributable to the Class E Certificates as provided in
Sections 4.01(a) and (c) on a pro rata basis (based on the aggregate Collateral
Support Deficit previously allocated to such Uncertificated Lower-Tier Interests
and not previously reimbursed). On each Distribution Date, the Class LF-1 and
Class LF-2 Uncertificated Lower-Tier Interests shall be deemed to receive
distributions from the Lower-Tier Distribution Account in respect of
reimbursement of Collateral Support Deficit distributable to the Class F
Certificates as provided in Sections 4.01(a) and (c) on a pro rata basis (based
on the aggregate Collateral Support Deficit previously allocated to such
Uncertificated Lower-Tier Interests and not previously reimbursed). On each
Distribution Date, the Class LG-1, Class LG-2 and Class LG-3 Uncertificated
Lower-Tier Interests shall be deemed to receive distributions from the
Lower-Tier Distribution Account in respect of reimbursement of Collateral
Support Deficit distributable to the Class G Certificates as provided in
Sections 4.01(a) and (c) on a pro rata basis (based on the aggregate Collateral
Support Deficit previously allocated to such Uncertificated Lower-Tier Interests
and not previously reimbursed). On each Distribution Date, the Class LH-1 and
Class LH-2 Uncertificated Lower-Tier Interests shall be deemed to receive
distributions from the Lower-Tier Distribution Account in respect of
reimbursement of Collateral Support Deficit distributable to the Class H
Certificates as provided in Sections 4.01(a) and (c) on a pro rata basis (based
on the aggregate Collateral Support Deficit previously allocated to such
Uncertificated Lower-Tier Interests and not previously reimbursed). On each
Distribution Date, the Class LJ-1 and Class LJ-2 Uncertificated Lower-Tier
Interests shall be deemed to receive distributions from the Lower-Tier
Distribution Account in respect of reimbursement of Collateral Support Deficit
distributable to the Class J Certificates as provided in Sections 4.01(a) and
(c) on a pro rata basis (based on the aggregate Collateral Support Deficit
previously allocated to such Uncertificated Lower-Tier Interests and not
previously reimbursed). On each Distribution Date, the Class LK-1 and Class LK-2
Uncertificated Lower-Tier Interests shall be deemed to receive distributions
from the Lower-Tier Distribution Account in respect of reimbursement of
Collateral Support Deficit distributable to the Class K Certificates as provided
in Sections 4.01(a) and (c) on a pro rata basis (based on the aggregate
Collateral Support Deficit previously allocated to such Uncertificated
Lower-Tier Interests and not previously reimbursed). On each Distribution Date,
the Class LL-1 and Class LL-2 Uncertificated Lower-Tier Interests shall be
deemed to receive distributions from the Lower-Tier Distribution Account in
respect of reimbursement of Collateral Support Deficit distributable to the
Class L Certificates as provided in Sections 4.01(a) and (c) on a pro rata basis
(based on the aggregate Collateral Support Deficit previously allocated to such
Uncertificated Lower-Tier Interests and not previously reimbursed).
Amounts deemed distributed to the Uncertificated Lower-Tier
Interests in respect of principal, interest and reimbursement of Collateral
Support Deficit with respect to any Distribution Date are referred to herein
collectively as the "Lower-Tier Distribution Amount," and shall be made by the
Trustee by depositing such Lower-Tier Distribution Amount in the Upper Tier
Distribution Account.
Any amount that remains in the Lower-Tier Distribution Account on
each Distribution Date after distribution of the Lower-Tier Distribution Amount
and the distribution of any Yield Maintenance Charges shall be distributed to
the Holders of the Class LR Certificates.
(c) On each Distribution Date, the Trustee shall withdraw from the
Lower-Tier Distribution Account an aggregate amount equal to all Yield
Maintenance Charges actually collected on the Mortgage Loans or any REO Loans on
or prior to the related Determination Date and shall distribute such amount in
respect of the Class LA-1-1 Uncertificated Lower-Tier Interest by depositing
such amount in the Upper-Tier Distribution Account (notwithstanding that all
principal and interest distributable with respect to the Class LA-1-1
Uncertificated Lower-Tier Interest has been paid in full).
(d) [Reserved]
(e) On each Distribution Date, the Trustee shall withdraw any
amounts on deposit in the Upper-Tier Distribution Account that represent Yield
Maintenance Charges actually collected on Mortgage Loans or successor REO Loans
on or prior to the related Determination Date and remitted in respect of the
Uncertificated Lower-Tier Interests pursuant to Section 4.01(c), and shall
distribute such amounts as follows:
(i) Yield Maintenance Charges received with respect to the Group 1
Mortgage Loans shall be distributed to the Class A-1, Class A-2, Class
A-3, Class A-AB, Class A-4, Class A-M, Class A-J, Class B, Class C, Class
D, Class E, Class F, Class G, Class H, Class J and Class K Certificates
and the Class A-MFL Regular Interest and the Class A-JFL Regular Interest,
in an amount equal to the product of (a) a fraction 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 A-2, Class A-3, Class A-AB, Class A-4, Class A-M, Class
A-J, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class
J and Class K Certificates and the Class A-MFL Regular Interest and the
Class A-JFL Regular Interest on such Distribution Date, (b) the Base
Interest fraction for the related Principal Prepayment and such Class of
Certificates and (c) the total amount of Yield Maintenance Charges
collected with respect to the related Principal Prepayments on or prior to
the related Determination Date. Any Yield Maintenance Charges collected on
or prior to the related Determination Date and remaining after such
distributions shall be distributed to the Holders of the Class X
Certificates;
(ii) Yield Maintenance Charges received with respect to the Group 2
Mortgage Loans shall be distributed to the Class A-1A Certificates, in an
amount equal to the product of (a) a fraction 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-1A Certificates on such Distribution Date, (b) the Base Interest
Fraction for the related Principal Prepayment and such Class of
Certificates and (c) the aggregate amount of Yield Maintenance Charges
collected on such Principal Prepayments on or prior to the related
Determination Date. Any Yield Maintenance Charges collected on or prior to
the related Determination Date remaining after such distributions shall be
distributed to the Holders of the Class X Certificates.
Following the reduction of the Certificate Balances of the Class
A-1, Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class A-AB, Class A-4, Class A-1A, Class A-M, Class
A-J, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J and
Class K Certificates and the Class A-MFL Regular Interest and the Class A-JFL
Regular Interest to zero, the Trustee shall distribute to the Class X
Certificates all Yield Maintenance Charges actually received on or prior to the
related Determination Date with respect to the Mortgage Loans and remitted in
respect of Uncertificated Lower-Tier Interests pursuant to Section 4.01(b).
(f) 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 specifically provided in Sections 4.01(g), 4.01(h) and 9.01, all such
distributions with respect to each Class on each Distribution Date shall be made
to the Certificateholders of the respective Class of record at the close of
business on the related Record Date and shall be made by wire transfer of
immediately available funds to the account of any such Certificateholder at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with 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 Collateral Support Deficit previously allocated to such
Certificate) will be made in like manner, but only upon presentation and
surrender of such Certificate at the offices of the Certificate Registrar or
such other location specified in the notice to Certificateholders of such final
distribution.
Each distribution with respect to a Book-Entry Certificate shall be
paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Trustee, the
Certificate Registrar, the Depositor, the Servicers, the Special Servicer, the
Underwriters or the Initial Purchasers shall have any responsibility therefor
except as otherwise provided by this Agreement or applicable law.
(g) Except as otherwise provided in Section 9.01, whenever the
Trustee expects that the final distribution with respect to any Class of
Certificates (determined without regard to any possible future reimbursement of
any amount of Collateral Support Deficit previously allocated to such Class of
Certificates) will be made on the next Distribution Date, the Trustee shall, no
later than the related P&I Advance Determination Date, mail to each Rating
Agency and to each Holder on such date of such Class of Certificates a notice to
the effect that:
(i) the Trustee expects that the final distribution with respect to
such Class of Certificates will be made on such Distribution Date but only
upon presentation and surrender of such Certificates at the offices of the
Certificate Registrar or such other location therein specified; and
(ii) no interest shall accrue on such Certificates from and after
such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such Class
on such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held uninvested
in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(g) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such steps
to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any Certificateholder on any
amount held in trust hereunder by the Trustee as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 4.01(g).
(h) Distributions in reimbursement of Collateral Support Deficit
previously allocated to the Regular Certificates shall be made in the amounts
and manner specified in Section 4.01(a) to the Holders of the respective Class
otherwise entitled to distributions of interest and principal on such Class on
the relevant Distribution Date; provided, that all distributions in
reimbursement of Collateral Support Deficit previously allocated to a Class of
Certificates which has since been retired shall be to the prior Holders that
surrendered the Certificates of such Class upon retirement thereof and shall be
made by check mailed to the address of each such prior Holder last shown in the
Certificate Register. Notice of any such distribution to a prior Holder shall be
made in accordance with Section 12.05 at such last address. The amount of the
distribution to each such prior Holder shall be based upon the aggregate
Percentage Interest evidenced by the Certificates surrendered thereby. If the
check mailed to any such prior Holder is returned uncashed, then the amount
thereof shall be set aside and held uninvested in trust for the benefit of such
prior Holder, and the Trustee shall attempt to contact such prior Holder in the
manner contemplated by Section 4.01(g) as if such Holder had failed to surrender
its Certificates.
(i) Shortfalls in interest distributable to the Certificates on any
Distribution Date resulting from Uncovered Prepayment Interest Shortfalls shall
be allocated to each Class of Regular Certificates (other than the Class X
Certificates), pro rata, based on the Accrued Certificate Interest distributable
to each such Class on such Distribution Date. Uncovered Prepayment Interest
Shortfalls so allocated to the Regular Certificates (other than the Class X
Certificates) shall be allocated to the Related Uncertificated Lower Tier
Interests, pro rata, based on interest accrued (without regard to the related
Class X-P or Class X-C Strip Rate).
(j) On each Distribution Date, with respect to amounts on deposit in
the Excess Liquidation Proceeds Reserve Account, the Trustee shall distribute
such amount to the Certificateholders, in sequential order, as reimbursement for
previously allocated Collateral Support Deficit, and shall be deemed to have
distributed such amounts from the Lower-Tier REMIC to the Upper-Tier REMIC in
respect of the Related Uncertificated Lower-Tier Interests in the same manner as
principal is allocated in Section 4.01(b). Any amounts remaining in the Excess
Liquidation Proceeds Reserve Account on the Final Distribution Date shall be
distributed to the Holders of the Class LR Certificates.
(k) [Reserved].
(l) Notwithstanding any other provision of this Agreement, the
Trustee shall comply with all federal withholding requirements respecting
payments to Certificateholders of interest or original issue discount that the
Trustee reasonably believes are applicable under the Code. The Certificate
Registrar shall promptly provide the Trustee with any IRS Forms W-9, W-8BEN,
W-8IMY (and all appropriate attachments) or W-8ECI upon its receipt thereof. The
consent of Certificateholders shall not be required for such withholding. If the
Paying Agent does withhold any amount from interest or original issue discount
payments or advances thereof to any Certificateholder pursuant to federal
withholding requirements, the Paying Agent 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.
(m) On each Distribution Date, to the extent of the Class A-MFL
Available Funds for such Distribution Date, the Trustee shall make distributions
from the Class A-MFL Floating Rate Account in the following order of priority,
satisfying in full, to the extent required and possible, each priority before
making any distribution with respect to any succeeding priority:
(A) First, to the Holders of the Class A-MFL Certificates in
respect of interest, up to an amount equal to the Class A-MFL
Interest Distribution Amount, for such Distribution Date;
(B) Second, to the Holders of the Class A-MFL Certificates in
reduction of the Certificate Balances thereof, an amount equal to
the Class A-MFL Principal Distribution Amount until the outstanding
Certificate Balance thereof has been reduced to zero;
(C) Third, to the Holders of the Class A-MFL Certificates
until all Collateral Support Deficits and Trust Fund expenses
previously allocated to the Class A-MFL Certificates (as a result of
the allocation of Collateral Support Deficits and Trust Fund
expenses to the Class A-MFL Regular Interest) but not previously
reimbursed, have been reimbursed in full; and
(D) Fourth, any remaining amount to the Holders of the Class
A-MFL Certificates.
So long as a Class A-MFL Distribution Conversion is not in effect,
any Yield Maintenance Charges paid on the Class A-MFL Regular Interest shall be
payable to the Class A-MFL Swap Counterparty pursuant to the terms of the Class
A-MFL Swap Contract on a net basis as part of the Class A-MFL Net Swap Payment
specified in Section 3.32. On each Distribution Date for which a Class A-MFL
Distribution Conversion is in effect, any Yield Maintenance amount paid on the
Class A-MFL Regular Interest shall be distributed to the Holders of the Class
A-MFL Certificates. Any termination payments due to the Class A-MFL Swap
Counterparty under the Class A-MFL Swap Contract shall be payable solely to the
extent of any payment made by a replacement swap counterparty to the Trust Fund
in consideration for entering into such replacement swap contract, if any (less
any costs and expenses incurred by the Trust Fund in connection with entering
into such replacement swap contract).
(n) On each Distribution Date, to the extent of the Class A-JFL
Available Funds for such Distribution Date, the Trustee shall make distributions
from the Class A-JFL Floating Rate Account in the following order of priority,
satisfying in full, to the extent required and possible, each priority before
making any distribution with respect to any succeeding priority:
(A) First, to the Holders of the Class A-JFL Certificates in
respect of interest, up to an amount equal to the Class A-JFL
Interest Distribution Amount, for such Distribution Date;
(B) Second, to the Holders of the Class A-JFL Certificates in
reduction of the Certificate Balances thereof, an amount equal to
the Class A-JFL Principal Distribution Amount until the outstanding
Certificate Balance thereof has been reduced to zero;
(C) Third, to the Holders of the Class A-JFL Certificates
until all Collateral Support Deficits and Trust Fund expenses
previously allocated to the Class A-JFL Certificates (as a result of
the allocation of Collateral Support Deficits and Trust Fund
expenses to the Class A-JFL Regular Interest) but not previously
reimbursed, have been reimbursed in full; and
(D) Fourth, any remaining amount to the Holders of the Class
A-JFL Certificates.
So long as a Class A-JFL Distribution Conversion is not in effect,
any Yield Maintenance Charges paid on the Class A-JFL Regular Interest shall be
payable to the Class A-JFL Swap Counterparty pursuant to the terms of the Class
A-JFL Swap Contract on a net basis as part of the Class A-JFL Net Swap Payment
specified in Section 3.32. On each Distribution Date for which a Class A-JFL
Distribution Conversion is in effect, any Yield Maintenance amount paid on the
Class A-JFL Regular Interest shall be distributed to the Holders of the Class
A-JFL Certificates. Any termination payments due to the Class A-JFL Swap
Counterparty under the Class A-JFL Swap Contract shall be payable solely to the
extent of any payment made by a replacement swap counterparty to the Trust Fund
in consideration for entering into such replacement swap contract, if any (less
any costs and expenses incurred by the Trust Fund in connection with entering
into such replacement swap contract).
Section 4.02 Statements to Certificateholders; CMSA Investor
Reporting Package.
(a) On each Distribution Date, the Trustee shall make available and,
upon request, forward to any interested party (including each Swap Counterparty)
a statement (substantially in the form set forth as Exhibit G hereto and based
on the information supplied to the Trustee in the related CMSA Investor
Reporting Package, upon which information the Trustee may conclusively rely, in
accordance with CMSA guidelines) as to the distributions made on such
Distribution Date (each, a "Statement to Certificateholders") setting forth:
(i) the amount of the distribution on such Distribution Date to the
Holders of each Class of Certificates in reduction of the Certificate
Balance thereof;
(ii) the amount of the distribution on such Distribution Date to the
Holders of each Class of Regular Certificates (other than the Class A-MFL
Certificates and Class A-JFL Certificates) and the Class A-MFL Regular
Interest and the Class A-JFL Regular Interest allocable to Distributable
Certificate Interest or the Class A-MFL Interest Distribution Amount or
Class A-JFL Interest Distribution Amount as applicable, and, with respect
to the Class A-MFL or Class A-JFL Certificates, notification that the
amount of interest distribution thereon is equal to the interest
distribution amount with respect to the Class A-MFL Regular Interest or
Class A-JFL Regular Interest which is being paid as a result of a Class
A-MFL Distribution Conversion or a Class A-JFL Distribution Conversion, as
applicable;
(iii) the aggregate amount of Advances made, with respect to the
Mortgage Pool and with respect to each Loan Group, during the period from
but not including the previous Distribution Date to and including such
Distribution Date (including, to the extent material, the general use of
funds advanced and general source of funds for reimbursements);
(iv) the aggregate amount of compensation paid to the Trustee and
servicing compensation paid to the Servicers and the Special Servicer for
the related Determination Date and any other fees accrued and paid from
the Trust Fund;
(v) the aggregate Stated Principal Balance, with respect to the
Mortgage Pool and with respect to each Loan Group, of the Mortgage Loans
and any REO Loans outstanding immediately before and immediately after
such Distribution Date;
(vi) the number of loans, their aggregate principal balance,
weighted average, remaining term to maturity and weighted average Mortgage
Rate (and interest rates by distributional groups or ranges) of the
Mortgage Loans (as of the related and the next succeeding Distribution
Date), with respect to the Mortgage Pool and with respect to each Loan
Group, as of the related Determination Date;
(vii) the number and aggregate principal balance of Mortgage Loans
(A) delinquent 30-59 days, (B) delinquent 60-89 days, (C) delinquent 90
days or more and (D) current but specially serviced or in foreclosure but
not REO Property (and the information described in Item 1100(b)(5) of
Regulation AB to the extent material);
(viii) the value of any REO Property included in the Trust Fund as
of the Determination Date for such Distribution Date, on a loan by loan
basis, based on the most recent Appraisal or valuation;
(ix) the Available Distribution Amount, the Class A-MFL Available
Funds and the Class A-JFL Available Funds for such Distribution Date, and
any other cash flows received on the Mortgage Loans applied to pay fees
and expenses (including the components of the Available Distribution
Amount or other cash flows);
(x) the Accrued Certificate Interest in respect of each Class of
Certificates for such Distribution Date, separately identifying any
Certificate Deferred Interest for such Distribution Date allocated to such
Class of Certificates;
(xi) the amount of the distribution on such Distribution Date to the
Holders of such Class of Certificates allocable to Yield Maintenance
Charges;
(xii) the Pass-Through Rate for each Class of Certificates for such
Distribution Date and the next succeeding Distribution Date;
(xiii) the Scheduled Principal Distribution Amount, the Unscheduled
Principal Distribution Amount and the Principal Shortfall for such
Distribution Date, with respect to the Mortgage Pool and with respect to
each Loan Group;
(xiv) the Certificate Balance or Notional Amount, as the case may
be, of each Class of Certificates immediately before and immediately after
such Distribution Date, separately identifying any reduction therein as a
result of the allocation of any Collateral Support Deficit on such
Distribution Date and the aggregate amount of all reductions as a result
of allocations of Collateral Support Deficits to date;
(xv) the Certificate Factor for each Class of Regular Certificates
immediately following such Distribution Date;
(xvi) the amount of any Appraisal Reductions effected in connection
with such Distribution Date on a loan-by-loan basis, the total Appraisal
Reduction effected in connection with such Distribution Date and the total
Appraisal Reduction Amounts as of such Distribution Date;
(xvii) the number and related Stated Principal Balance of any
Mortgage Loans extended, modified or waived since the previous
Determination Date, on a loan-by-loan basis (including a description of
any material modifications, extensions or waivers to Mortgage Loan terms,
fees, penalties or payments during the distribution period or that have
cumulatively become material over time);
(xviii) the amount of any remaining Class Unpaid Interest Shortfall
for such Class as of such Distribution Date;
(xix) a loan-by-loan listing of each Mortgage Loan which was the
subject of a Principal Prepayment since the previous Determination Date
and the amount and the type of Principal Prepayment occurring;
(xx) a loan-by-loan listing of each Mortgage Loan which was defeased
since the previous Determination Date;
(xxi) the balance of the Interest Reserve Account on the P&I Advance
Date;
(xxii) in the case of the Residual Certificates, the amount of any
distributions on such Certificates pursuant to Sections 4.01(a) and (b);
(xxiii) the amount of the distribution on such Distribution Date to
the Holders of such Class of Certificates in reimbursement of previously
allocated Collateral Support Deficit;
(xxiv) the aggregate unpaid principal balance of the Mortgage Loans
outstanding as of the close of business on the related Determination Date,
with respect to the Mortgage Pool and with respect to each Loan Group;
(xxv) with respect to any Mortgage Loan as to which a Liquidation
Event occurred since the previous Determination Date (other than a payment
in full), (A) the loan number thereof, (B) the aggregate of all
Liquidation Proceeds and other amounts received in connection with such
Liquidation Event (separately identifying the portion thereof allocable to
distributions on the Certificates), and (C) the amount of any Collateral
Support Deficit in connection with such Liquidation Event;
(xxvi) with respect to any REO Property included in the Trust Fund
as to which a Final Recovery Determination was made since the previous
Determination Date, (A) the loan number of the related Mortgage Loan, (B)
the aggregate of all Liquidation Proceeds and other amounts received in
connection with such Final Recovery Determination (separately identifying
the portion thereof allocable to distributions on the Certificates), and
(C) the amount of any Collateral Support Deficit in respect of the related
REO Loan in connection with such Final Recovery Determination;
(xxvii) the aggregate amount of interest on P&I Advances paid to the
Servicers and the Trustee since the preceding Distribution Date, with
respect to the Mortgage Pool and with respect to each Loan Group;
(xxviii) the aggregate amount of interest on Servicing Advances paid
to the Servicers, the Special Servicer and the Trustee since the preceding
Distribution Date, with respect to the Mortgage Pool and with respect to
each Loan Group;
(xxix) the original and then current credit support levels for each
Class of Certificates;
(xxx) the original and then current ratings for each Class of
Regular Certificates;
(xxxi) the aggregate amount of Yield Maintenance Charges collected
since the previous Determination Date;
(xxxii) the amounts on deposit in each account established by the
Servicers and Special Servicer pursuant to this Agreement before and after
giving effect to the distribution made on such Distribution Date (and any
material account activity since the prior Distribution Date);
(xxxiii) LIBOR as calculated for the related Distribution Date,
Interest Accrual Period and Determination Date and the next succeeding
Distribution Date;
(xxxiv) material breaches of Mortgage Loan representations and
warranties of which the Trustee, Servicers or the Special Servicer has
received written notice the amounts received and paid in respect of the
Swap Contract;
(xxxv) identification of any Rating Agency Trigger Event or Swap
Default as of the close of business on the last day of the immediately
preceding calendar month with respect to the Swap Contract;
(xxxvi) the amount of any (A) payment by the related Swap
Counterparty as a termination payment, (B) payment in connection with the
acquisition of a replacement interest rate swap contract and (C)
collateral posted in connection with any Rating Agency Trigger Event; and
(xxxvii) the amount of, and indemnification of, any interest due
thereon (including without limitation, any termination payment received in
connection with the related Swap Contract).
In the case of information furnished pursuant to clauses (i), (ii),
(xi), (xvi) and (xviii) above, the amounts shall be expressed as a dollar amount
in the aggregate for all Certificates of each applicable Class and per
Definitive Certificate.
Within a reasonable period of time after the end of each calendar
year, the Trustee shall furnish to each Person who at any time during the
calendar year was a Holder of a Certificate a statement containing the
information set forth in clauses (i), (ii) and (xi) above as to the applicable
Class, aggregated for such calendar year or applicable portion thereof during
which such person was a Certificateholder, together with such other information
as the Trustee deems necessary or desirable, or that a Certificateholder or
Certificate Owner reasonably requests, to enable Certificateholders to prepare
their tax returns for such calendar year. Such obligation of the Trustee shall
be deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Trustee pursuant to any requirements of the
Code as from time to time are in force.
The Trustee shall make available each month, to the general public
(including the Underwriters and the Initial Purchasers) via its internet website
initially located at "▇▇▇.▇▇▇▇▇▇▇.▇▇▇," (i) the related Statement to
Certificateholders (in the form attached hereto as Exhibit G), (ii) to the
extent received from the Servicers, the CMSA Loan Periodic Update File, CMSA
Loan Setup File, CMSA Bond Level File, and CMSA Collateral Summary File, and
(iii) as a convenience to the general public (and not in furtherance of the
distribution thereof under the securities laws), the Prospectus, this Agreement
and any other information requested by the Depositor and (iv) any reports on
Forms 10-D, 10K and 8-K (except with respect to the initial Form 8-K filed by
the Depositor) that have been filed with respect to the Trust through the ▇▇▇▇▇
system.
In addition, the Trustee shall make available each month, to the
extent received from the Servicers, to any Privileged Person, the Underwriters
and the Initial Purchasers via its internet website, the CMSA Supplemental
Servicer Reports, the CMSA Property File, the CMSA Financial File and any other
information requested by the Depositor.
Neither the Trustee nor the Servicers makes any representations or
warranties as to the accuracy or completeness of any report, document or other
information for which it is not the original source and that is made available
on its internet website and assumes no responsibility therefor. In addition, the
Trustee and the Servicers may disclaim responsibility for any information
distributed by the Trustee or the Servicers, as the case may be, for which it is
not the original source.
Upon request, the Trustee shall also deliver to the Underwriters, in
the case of the Offered Certificates, and the Initial Purchasers, in the case of
the Non-Offered Certificates, copies of all reports not available on the
Trustee's internet website and required to be delivered to the holders of such
Certificates, under the terms and conditions applicable to holders of such
Certificates.
In connection with providing access to the Trustee's or the
Servicers' internet websites, the Trustee or the Servicers, as applicable, may
require registration, the acceptance of a disclaimer and the execution and
delivery of a confidentiality and indemnification agreement. Neither the Trustee
nor the Servicers shall be liable for the dissemination of information in
accordance herewith. Questions regarding the Trustee's internet website can be
directed to the Trustee's CMBS customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇ and
questions regarding the Servicers' internet website can be directed to Servicer
No. 1 at (▇▇▇) ▇▇▇-▇▇▇▇ and Servicer No. 2 at (▇▇▇) ▇▇▇-▇▇▇▇.
Each Servicer may, at its sole cost and expense, make available by
electronic media, bulletin board service or internet website (in addition to
making information available as provided herein) the CMSA Investor Reporting
Package and may make available any other reports and other information regarding
the loans, properties and borrowers that the Servicers are required or permitted
to provide hereunder, to any party to this Agreement, the Rating Agencies, the
Underwriter, any Certificateholder or prospective Certificateholder (or solely
with respect to reports relating to the related Serviced Whole Loan, the holders
of any Serviced Companion Loan (or their designees)) or any other Privileged
Person. The availability of such information or reports on the internet or
similar electronic media shall be deemed to satisfy any specific delivery
requirements of such Servicer in this Agreement. In connection with providing
access to each Servicer's Internet website which it may maintain, the Servicers
shall take reasonable measures to ensure that only such parties listed above may
access such information including, without limitation, requiring registration
and acceptance of a disclaimer. The Servicers shall not be liable for
dissemination of this information in accordance with this Agreement, provided
that such information otherwise meets the requirements set forth herein with
respect to the form and substance of such information or reports. The Servicers
shall be entitled to attach to any report provided pursuant to this subsection,
any reasonable disclaimer with respect to information provided, or any
assumptions required to be made by such report. Notwithstanding anything herein
to the contrary, the Servicers may, at their sole cost and expense, make
available by electronic media, bulletin board service or internet website any
reports or other information the Servicers are required or permitted to provide
to any Mortgagor with respect to such Mortgagor's Mortgage Loan to the extent
such action does not conflict with the terms of this Agreement, the terms of the
Mortgage Loans or applicable law.
The Trustee shall only be obligated to deliver the statements,
reports and information contemplated by this Section 4.02(a) to the extent it
receives, in the format required by this Agreement, the necessary underlying
information from the applicable Servicer or the Special Servicer, as applicable,
and shall not be liable for any failure to deliver any thereof on the prescribed
due dates, to the extent caused by failure to receive timely such underlying
information. Nothing herein shall obligate the Trustee, the Servicers or the
Special Servicer to violate any applicable law prohibiting disclosure of
information with respect to any Mortgagor and the failure of the Trustee,
Servicers or the Special Servicer to disseminate information for such reason
shall not be a breach hereof.
(b) Neither the Trustee nor the Depositor shall have any obligation
to recompute, verify or recalculate the information provided thereto by the
Servicers in the CMSA Investor Reporting Package. Unless the Trustee has actual
knowledge that any CMSA Investor Reporting Package contains erroneous
information, the Trustee is authorized to rely thereon in calculating and making
distributions to Certificateholders in accordance with Section 4.01, preparing
the statements to Certificateholders required by Section 4.02(a) and allocating
Collateral Support Deficit to the Certificates in accordance with Section 4.04.
Notwithstanding the foregoing, the failure of either Servicer or
Special Servicer to disclose any information otherwise required to be disclosed
pursuant to this Section 4.02(b) or Section 4.02(c) shall not constitute a
breach of this Section 4.02(b) or of Section 4.02(c) to the extent such Servicer
or the Special Servicer so fails because such disclosure, in the reasonable
belief of such 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 Mortgage Loans or the Mortgaged
Properties. The Servicers 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).
Absent manifest error of which it has actual knowledge, none of the
Servicers, the Special Servicer or the Trustee shall be responsible for the
accuracy or completeness of any information supplied to it by a Mortgagor, the
Depositor (including information in the Prospectus Supplement), a Mortgage Loan
Seller or a third party that is included in any reports, statements, materials
or information prepared or provided by a Servicer, the Special Servicer or the
Trustee, as applicable, pursuant to this Agreement. None of the Trustee, the
Servicers or the Special Servicer shall have any obligation to verify the
accuracy or completeness of any information provided by a Mortgagor, a Mortgage
Loan Seller, a third party or each other.
(c) As soon as reasonably practicable, upon the written request of
any Certificateholder, the Trustee shall provide the requesting
Certificateholder with such information that is in the Trustee's possession or
can reasonably be obtained by the Trustee as is requested by such
Certificateholder, for purposes of satisfying applicable reporting requirements
under Rule 144A under the Securities Act. Neither the Certificate Registrar nor
the Trustee shall have any responsibility for the sufficiency under Rule 144A or
any other securities laws of any available information so furnished to any
person including any prospective purchaser of a Certificate or any interest
therein, nor for the content or accuracy of any information so furnished which
was prepared or delivered to them by another. In addition, the Trustee shall
provide any designee of the Depositor certain current information with respect
to the Mortgaged Properties as set forth on Schedule 1 hereto, to the extent
such information is in the Trustee's possession or can reasonably be obtained by
the Trustee.
(d) Reserved.
(e) At all times during the Trust's fiscal year 2007, the Trustee
shall monitor for the occurrence or existence of any of the following matters:
(i) any failure of the Trustee to make any monthly distributions to
the Holders of any Class of Certificates, which failure is not otherwise
reflected in the Statements to Certificateholders filed with the
Commission or has not otherwise been reported to the Depositor pursuant to
any other section of this Agreement;
(ii) any acquisition or disposition by the Trust of a Mortgage Loan
or an REO Property, which acquisition or disposition has not otherwise
been reflected in the Statements to Certificateholders filed with the
Commission or has not otherwise been reported to the Depositor pursuant to
any other section of this Agreement;
(iii) any other acquisition or disposition by the Trust of a
significant amount of assets (other than Permitted Investments, Mortgage
Loans and REO Properties), other than in the normal course of business,
which acquisition or disposition has not otherwise been reflected in the
Statements to Certificateholders filed with the Commission or has not
otherwise been reported to the Depositor pursuant to any other section of
this Agreement;
(iv) any change in the fiscal year of the Trust;
(v) any material legal proceedings of which the Trustee has
knowledge, other than ordinary routine litigation incidental to the
business of the Trust, to which the Trust (or any party to this Agreement
on behalf of the Trust) is a party or of which any property included in
the Trust Fund is subject, or any threat by a governmental authority to
bring any such legal proceedings;
(vi) any event of bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities, or similar proceedings in respect
of or pertaining to the Trust or any party to this Agreement of which the
Trustee has knowledge, or any actions by or on behalf of the Trust or any
party to this Agreement indicating its bankruptcy, insolvency or inability
to pay its obligations; and
(vii) any change in the rating or ratings assigned to any Class of
Certificates not otherwise reflected in the Statements to
Certificateholders filed with the Commission;
provided that (1) the actual knowledge of a Responsible Officer of the Trustee
of any material legal proceedings of which property included in the Trust Fund
is subject or of any material legal proceedings threatened by a governmental
authority is limited (except where the Trustee received information regarding
such proceeding from the Servicers or the Special Servicer pursuant to the next
paragraph) to circumstances where it would be reasonable for the Trustee to
identify such property as an asset of, or as securing an asset of, the Trust or
such threatened proceedings as concerning the Trust and (2) no Responsible
Officer of the Trustee shall be deemed to have actual knowledge of the matters
described in clauses (vi) and (vii) of this Section 4.02(e) unless (x) any such
matter contemplated in clause (vi) occurred or related specifically to the Trust
or (y) such Responsible Officer was notified in a written instrument addressed
to it.
Section 4.03 P&I Advances.
(a) No later than 2:00 p.m. (New York City time) on each P&I Advance
Date, the Servicers shall in the case of all Mortgage Loans either (i) remit to
the Trustee for deposit into the Lower-Tier Distribution Account, as applicable,
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.
Any amounts held in the Certificate Account for future distribution
and so used to make P&I Advances shall be appropriately reflected in the
applicable Servicer's records and replaced by such Servicer by deposit in the
Certificate Account, on or before the next succeeding P&I Advance 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 the Servicers fail to make a required P&I Advance on
any P&I Advance Date, the Trustee shall make such P&I Advance pursuant to
Section 7.05 by noon, New York City time, on the related Distribution Date.
Neither the Trustee nor either of the Servicers is required to make a P&I
Advance with respect to any Serviced Companion Loan.
(b) Subject to Section 4.03(c) and 4.03(e) below, the aggregate
amount of P&I Advances to be made by the Servicers with respect to any
Distribution Date shall equal the aggregate of: (i) all Monthly Payments (in
each case, net of related Servicing Fees and, if applicable, any Non-Serviced
Mortgage Loan Primary Servicing Fee) other than Balloon Payments, that were due
on a Due Date during the related Due Period and not received as of the close of
business on the P&I Advance Determination Date (or not advanced by the
applicable Servicer or any Sub-Servicer on behalf of such Servicer) and (ii)
with respect to each REO Loan and each Mortgage Loan as to which the related
Balloon Payment was due during or prior to the related Due Period and was
delinquent as of the related Determination Date (including any REO Loan as to
which the Balloon Payment would have been past due), an amount equal to the
Assumed Scheduled Payment therefor. Subject to subsection (c) below, the
obligation of the Servicers to make such P&I Advances is mandatory, and with
respect to any Mortgage Loan or successor REO Loan, shall continue until the
Distribution Date on which the proceeds, if any, received in connection with a
Liquidation Event with respect thereto are to be distributed; provided, that if
the Monthly Payment on any Mortgage Loan has been reduced in connection with a
bankruptcy or similar proceeding involving the related Mortgagor or a
modification, waiver or amendment granted or agreed to by the Special Servicer
pursuant to Section 3.20, or, if the final maturity on any Mortgage Loan shall
be extended in connection with a bankruptcy or similar proceeding involving the
related Mortgagor or a modification, waiver or amendment granted or agreed to by
the Special Servicer pursuant to Section 3.20, and if the Monthly Payment due
and owing during the extension period or after such modification, waiver,
amendment or bankruptcy is less than the related Assumed Scheduled Payment, then
the applicable Servicer or the Trustee shall, as to such Mortgage Loan only,
advance only the amount of the Monthly Payment due and owing after taking into
account such reduction (net of related Servicing Fees and any related
Non-Serviced Mortgage Loan Primary Servicing Fee) in the event of subsequent
delinquencies thereon.
(c) Notwithstanding anything herein to the contrary, (i) 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 and (ii) neither the applicable
Servicer nor the Trustee shall be required to make any P&I Advance hereunder
with respect to any mortgage loan or portion thereof that is not a Mortgage
Loan. Each of the Servicers and the Trustee may make its determination that a
Nonrecoverable P&I Advance has been made or that any proposed P&I Advance would
be a Nonrecoverable Advance. The Trustee may conclusively rely on such
determination made by the applicable Servicer. The Trustee and the applicable
Servicer may conclusively rely on such determination made by the applicable
Non-Serviced Mortgage Loan Servicer if such servicer is an "approved" servicer
by the rating agencies then rating the Certificates. In addition, the Special
Servicer may make a determination that a P&I Advance that has been made is a
Nonrecoverable Advance, which determination is binding on such Servicer and the
Trustee and shall be conclusively relied on by such Servicer and the Trustee;
provided, however, that each of the Servicers and the Trustee may continue to
make its own nonrecoverability determinations thereafter, unless the Special
Servicer has notified in writing each of the applicable Servicer and the Trustee
that it has determined that any future or additional P&I Advances on such
Mortgage Loan will be Nonrecoverable P&I Advances. On each Determination Date,
the Special Servicer shall report to the Servicer and the Trustee the Special
Servicer's determination as to whether each P&I Advance made with respect to any
previous Distribution Date or proposed to be made with respect to such
Distribution Date with respect to any Specially Serviced Mortgage Loan or REO
Loan is a Nonrecoverable P&I Advance.
(d) In connection with the recovery of any P&I Advance out of the
Certificate Account pursuant to Section 3.05(a) or the related Serviced Whole
Loan Custodial Account pursuant to Section 3.05(e), the applicable Servicer
shall be entitled to pay itself or the Trustee, as the case may be (in reverse
of such order with respect to any Mortgage Loan or REO Property as to which a
P&I Advance was made by such entity pursuant to this Agreement), out of any
amounts then on deposit in the Certificate Account or the related Serviced Whole
Loan Custodial Account (to the extent amounts therein relate to a Mortgage Loan,
pursuant to the related Co-Lender Agreement), as applicable, interest at the
Reimbursement Rate in effect from time to time, accrued on the amount of such
P&I Advance from the date made to but not including the date of reimbursement
(or if such P&I Advance was made prior to the end of any grace period applicable
to the subject delinquent Monthly Payment, for so long as such P&I Advance is
outstanding following the end of such grace period). The Servicers shall
reimburse themselves or the Trustee, as the case may be, for any outstanding P&I
Advance as soon as practicably possible (but after payment of any outstanding
Servicing Fees and Special Servicing Fees due) after funds available pursuant to
Section 3.05 for such purpose are deposited in the Certificate Account (with
respect to P&I Advances made with respect to Mortgage Loans that are not part of
a Serviced Whole Loan) or the related Serviced Whole Loan Custodial Account
(with respect to P&I Advances made with respect to Mortgage Loans that are part
of a Serviced Whole Loan).
(e) Notwithstanding the foregoing, (i) none of the Servicers or the
Trustee shall make a P&I Advance for Yield Maintenance Charges or Penalty
Charges or with respect to any Pari Passu Loan or B Note and (ii) the amount of
any P&I Advance with respect to a Mortgage Loan, as to which there has been an
Appraisal Reduction will be an amount equal to the product of (i) the amount
required to be advanced without giving effect to the Appraisal Reduction and
(ii) a fraction, the numerator of which is the Stated Principal Balance of such
Mortgage Loan as of the immediately preceding Determination Date less any
Appraisal Reduction Amount applicable to such Mortgage Loan and the denominator
of which is the Stated Principal Balance of such Mortgage Loan as of such
Determination Date. All P&I Advances for any Mortgage Loans that have been
modified shall be calculated on the basis of their terms as modified.
(f) With respect to the ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Mortgage Loan, Servicer No.
2 shall make its determination that it has made a P&I Advance on such Mortgage
Loan that is a Nonrecoverable P&I Advance or that any proposed P&I Advance, if
made, would constitute a Nonrecoverable P&I Advance with respect to such
Mortgage Loan independently of any determination made by any masters servicer
with respect to a related Other Securitization holding the related Pari Passu
Loan under the related Other Pooling and Servicing Agreement in respect of the
related Pari Passu Loan. If Servicer No. 2 determines that a proposed P&I
Advance with respect to any such Mortgage Loan if made, or any outstanding P&I
Advance with respect to such Mortgage Loan previously made, would be, or is, as
applicable, a Nonrecoverable Advance, Servicer No. 2 shall provide any master
servicer with respect to such Other Securitization under the related Other
Pooling and Servicing Agreement, written notice of such determination within one
Business Day of the date of such determination. If Servicer No. 2 receives
written notice from any master servicer with respect to such Other
Securitization holding the related Pari Passu Loan under the related Other
Pooling and Servicing Agreement that it has determined, with respect to the
related Pari Passu Loan, that any proposed advance of principal and/or interest
with respect to such Pari Passu Loan would be, or any outstanding advance of
principal and/or interest is, a nonrecoverable advance of principal and/or
interest, then such determination shall be binding on the Certificateholders and
none of Servicer No. 2 or the Trustee shall make any additional P&I Advances
with respect to the related Mortgage Loan unless Servicer No. 2 has consulted
with the other related master servicer(s) and they agree that circumstances with
respect to the related Whole Loan have changed such that a proposed future P&I
Advance in respect of the related Mortgage Loan would not be a Nonrecoverable
P&I Advance; provided, however, that the determination of any master servicer
with respect to such Other Securitization holding the related Pari Passu Loan
under the related Other Pooling and Servicing Agreement shall not be binding on
the Certificateholders, and Servicer No. 2 or the Trustee, as applicable, shall
make its own determination of recoverability, in the event that the master
servicer that made such determination is not approved as a master servicer by
each of S&P, Fitch and ▇▇▇▇▇'▇. Notwithstanding the foregoing, Servicer No. 2
shall continue to have the discretion provided in this Agreement to determine
that any future P&I Advance or outstanding P&I Advance would be, or is, as
applicable, a Nonrecoverable P&I Advance. Once such a determination is made by
Servicer No. 2 or Servicer No. 2 receives written notice of such determination
by any of the other related master servicers, none of Servicer No. 2 or the
Trustee shall make any additional P&I Advances with respect to the applicable
Mortgage Loan until Servicer No. 2 has followed the process set forth in this
paragraph. In the event that Servicer No. 2 receives notice from any of ▇▇▇▇▇'▇
or S&P that it is no longer approved as a master servicer for commercial
mortgage securitizations, it shall promptly notify the master servicer with
respect to each Other Securitization holding the related Pari Passu Loan under
the related Other Pooling and Servicing Agreement. The applicable master
servicer shall not be required under the related Other Pooling and Servicing
Agreement to abide by any determination of non-recoverability by Servicer No. 2
if Servicer No. 2 is no longer approved as a servicer for commercial
securitizations by S&P and ▇▇▇▇▇'▇. Servicer No. 1 will have no obligations with
respect to the ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Mortgage Loan under this Agreement.
(g) None of the Servicers or the Trustee or the Fiscal Agent shall
advance any amount due to be paid by a Swap Counterparty for distribution to the
Class A-MFL Certificates or Class A-JFL Certificates.
Section 4.04 Allocation of Collateral Support Deficit.
(a) On each Distribution Date, immediately following the
distributions to be made on such date pursuant to Section 4.01 and the
allocation of Certificate Deferred Interest pursuant to Section 4.06, the
Trustee shall calculate the amount, if any, by which (i) the aggregate Stated
Principal Balance (for purposes of this calculation only, not giving effect to
any reductions of the Stated Principal Balance for payments of principal
collection on the Mortgage Loans that were used to reimburse any Workout-Delayed
Reimbursement Amounts pursuant to Section 3.05(a)(v) to the extent such
Workout-Delayed Reimbursement Amounts not collected from the related borrower
are not otherwise determined to be Nonrecoverable Advances) of the Mortgage
Loans and any REO Loans expected to be outstanding immediately following such
Distribution Date, is less than (ii) the then aggregate Certificate Balance of
the Regular Certificates (other than the Class X Certificates and the Class
A-MFL Certificates and Class A-JFL Certificates) and the Class A-MFL Regular
Interest and Class A-JFL Regular Interest after giving effect to distributions
of principal on such Distribution Date and the allocation of Certificate
Deferred Interest pursuant to Section 4.06 (any such deficit, the "Collateral
Support Deficit"). Any allocation of Collateral Support Deficit to a Class of
Regular Certificates (or, with respect to the Class A-MFL Certificates or Class
A-JFL Certificates, an amount corresponding to any Collateral Support Deficit
allocated to the Class A-MFL Regular Interest or Class A-JFL Regular Interest,
respectively) shall be made by reducing the Certificate Balance thereof by the
amount so allocated. Any Collateral Support Deficit allocated to a Class of
Regular Certificates (or, with respect to the Class A-MFL Certificates or Class
A-JFL Certificates, an amount corresponding to any Collateral Support Deficit
allocated to the Class A-MFL Regular Interest or Class A-JFL Regular Interest,
respectively) shall be allocated among the respective Certificates of such Class
in proportion to the Percentage Interests evidenced thereby. The allocation of
Collateral Support Deficit shall constitute an allocation of losses and other
shortfalls experienced by the Trust Fund. Reimbursement of previously allocated
Collateral Support Deficit will not constitute distributions of principal for
any purpose and will not result in an additional reduction in the Certificate
Balance of the Class of Certificates in respect of which any such reimbursement
is made. To the extent any Nonrecoverable Advances (including interest thereon)
that were reimbursed from principal collections on the Mortgage Loans and
previously resulted in a reduction of the Principal Distribution Amount, Loan
Group 1 Principal Distribution Amount or Loan Group 2 Principal Distribution
Amount are subsequently recovered on the related Mortgage Loan, the amount of
such recovery will be added to the Certificate Balance of the Class or Classes
of Certificates (or, with respect to the Class A-MFL or Class A-JFL
Certificates, an amount corresponding to any Collateral Support Deficit
allocated to the Class A-MFL Regular Interest or the Class A-JFL Regular
Interest) that previously were allocated Collateral Support Deficit, in
sequential order, in each case up to the amount of the unreimbursed Collateral
Support Deficit allocated to such Class. If the Certificate Balance of any Class
is so increased, the amount of unreimbursed Collateral Support Deficit of such
Class shall be decreased by such amount.
(b) On each Distribution Date, the Certificate Balances of the
Regular Certificates (other than the Class X Certificates) will be reduced
without distribution as a write-off to the extent of any Collateral Support
Deficit, if any, allocable to such Certificates with respect to such
Distribution Date. Any such write-off shall be allocated among the respective
Certificates as follows: first, to the Class T Certificates; second, to the
Class Q Certificates; third, to the Class P Certificates; fourth, to the Class O
Certificates; fifth, to the Class N Certificates; sixth, to the Class M
Certificates; seventh, to the Class L Certificates; eighth, to the Class K
Certificates; ninth, to the Class J Certificates; tenth, to the Class H
Certificates; eleventh, to the Class G Certificates; twelfth, to the Class F
Certificates; fourteenth, to the Class E Certificates; fourteenth, to the Class
D Certificates; fifteenth, to the Class C Certificates, sixteenth, to the Class
B Certificates, seventeenth, to the Class A-J Certificates and Class A-JFL
Regular Interest, pro rata, eighteenth, to the Class A-M Certificates and Class
A-MFL Regular Interest, pro rata, in each case, until the remaining Certificate
Balance of each such Class of Certificates has been reduced to zero; and
nineteenth, to the Class A-1 Certificates, Class A-2, Class A-3, Class A-AB,
Class A-4 and Class A-1A Certificates pro rata (based upon Certificate Balance),
until the remaining Certificate Balances of such Classes of Certificates have
been reduced to zero.
(c) With respect to any Distribution Date, any Collateral Support
Deficit allocated to a Class of Certificates pursuant to Section 4.04(b) with
respect to such Distribution Date shall reduce the Lower-Tier Principal Amount
of the Related Uncertificated Lower-Tier Interest or Interests with respect
thereto as a write-off (and in the case of the Class LA-1-1, Class LA-1-2, Class
LA-1-3, Class LA-1-4, Class LA-2-1, Class LA-2-2, Class LA-2-3, Class LA-2-4,
Class LA-2-5, Class LA-2-6, Class LA-3-1, Class LA-3-2, Class LA-4-1, Class
LA-4-2, Class LA-4-3, Class LA-4-4, Class LA-4-5, Class LA-4-6, Class LA-1A-1,
Class LA-1A-2, Class LA-1A-3, Class LA-1A-4, Class LA-1A-5, Class LA-1A-6, Class
LA-1A-7, Class LA-1A-8, Class LA-1A-9, Class LA-1A-10, Class LA-1A-11, Class
LA-1A-12, Class LA-1A-13, Class LA-1A-14, Class LA-1A-15, Class LD-1, Class
LD-2, Class LE-1, Class LE-2, Class LF-1, Class LF-2, Class LG-1, Class LG-2,
Class LG-3, Class LH-1, Class LH-2, Class LJ-1, Class LJ-2, Class LK-1, Class
LK-2, Class LL-1 and Class LL-2 Uncertificated Interests, as set forth in
Section 4.01(b)).
Section 4.05 Appraisal Reductions.
The aggregate Appraisal Reduction Amount allocated to the Mortgage
Loans will be allocated by the Trustee on each Distribution Date, only for
purposes of determining the amount of P&I Advances with respect to the related
Mortgage Loan to the Certificate Balance of the Class T, 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 Certificates, the Class A-J Certificates and the
Class A-JFL Regular Interest, pro rata, and the Class A-M Certificates and the
Class A-MFL Regular Interest, pro rata, in that order, up to the amount of their
respective Certificates Balances. On any Distribution Date, an Appraisal
Reduction that otherwise would be allocated to a Class of Certificates will be
allocated to the next most subordinate Class to the extent that the Certificate
Balance on such Distribution Date for such Class of Certificates (prior to
taking the Appraisal Reduction into account) is less than the Appraisal
Reduction for such Distribution Date. An Appraisal Reduction shall not affect
the Certificate Balance for the purpose of calculating Voting Rights or for the
purpose of determining the identity of the Controlling Class.
Section 4.06 Certificate Deferred Interest.
(a) On each Distribution Date, the amount of interest distributable
to a Class of Regular Certificates (other than the Class X Certificates) shall
be reduced by an amount equal to the amount of Mortgage Deferred Interest for
all Mortgage Loans for the Due Dates occurring in the related Due Period
allocated to such Class of Certificates, such Mortgage Deferred Interest to be
allocated first, to the Class T Certificates, second, to the Class Q
Certificates, third, to the Class P Certificates, fourth, to the Class O
Certificates, fifth, to the Class N Certificates, sixth, to the Class M
Certificates, seventh, to the Class L Certificates, eighth, to the Class K
Certificates, ninth, to the Class J Certificates, tenth, to the Class H
Certificates, eleventh, to the Class G Certificates, twelfth, to the Class F
Certificates, thirteenth, to the Class E Certificates; fourteenth, to the Class
D Certificates, fifteenth, to the Class C Certificates, sixteenth, to the Class
B Certificates, seventeenth, to the Class A-J Certificates and the Class A-JFL
Regular Interest, pro rata, eighteenth, to the Class A-M Certificates and the
Class A-MFL Regular Interest, pro rata, and nineteenth, pro rata (based upon
Accrued Certificate Interest), to the Class A-1 Certificates, Class A-2
Certificates, Class A-3 Certificates, Class A-AB Certificates, Class A-4
Certificates and Class A-1A Certificates, in each case up to the respective
Accrued Certificate Interest for each such Class of Certificates for such
Distribution Date.
(b) On each Distribution Date, the Certificate Balances of the Class
A-1, Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class A-AB, Class A-4, Class A-1A, Class A-M, Class
A-J, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class O, Class P, Class Q and Class T
Certificates and the Class A-MFL Regular Interest and Class A-JFL Regular
Interest shall be increased by the amount of the Certificate Deferred Interest
allocated to such Class of Certificates on such Distribution Date pursuant to
Section 4.06(a) above.
(c) With respect to any Distribution Date, any Certificate Deferred
Interest with respect to such Distribution Date allocated pursuant to Section
4.06(a) to a Class of Certificates shall be allocated in reduction of the amount
of interest distributable to the Related Uncertificated Lower-Tier Interest or
Interests with respect thereto (with respect to the Related Uncertificated
Lower-Tier Interests of each of the Class A-1, Class A-1A, Class A-2, Class ▇-▇,
▇▇▇▇▇ ▇-▇, Class D, Class E, Class F, Class G, Class H, Class J, Class K and
Class L Certificates, in each case, pro rata based on interest accrued, among
the Related Uncertificated Lower-Tier Interests of each of such Classes) and in
each case without regard to the related Class X-C Strip Rate or Class X-P Strip
Rate. On each Distribution Date, to the extent provided in Section 4.06(b),
Certificate Deferred Interest will be added to the Lower-Tier Principal Amount
of the Uncertificated Lower-Tier Interests in the same manner as the interest
thereon was reduced pursuant to the preceding sentence.
Section 4.07 Grantor Trust Reporting.
(a) The parties intend that the portion of the Trust Fund
constituting the Grantor Trust, which consists of the Class A-MFL Regular
Interest, the Class A-JFL Regular Interest, the Swap Contracts, the Floating
Rate Accounts and proceeds thereof, shall constitute, and that the affairs of
such portion of the Trust Fund shall be conducted so as to qualify such portion
as a "grantor trust" under subpart E, Part I of subchapter J of the Code, and
the provisions hereof shall be interpreted consistently with this intention. In
furtherance of such intention, the Trustee shall (A) file, or cause to be filed,
Internal Revenue Service Form 1041 or such other form as may be applicable with
the Internal Revenue Service and (B) furnish, or cause to be furnished, to the
Class A-MFL Certificateholders, their allocable shares of income and expense
with respect to the Class A-MFL Regular Interest and the related Swap Contract,
each in the time or times and in the manner required by the Code, and (C)
furnish, or cause to be furnished, to the Class A-JFL Certificateholders, their
allocable shares of income and expense with respect to the Class A-JFL Regular
Interest and the related Swap Contract, each in the time or times and in the
manner required by the Code.
(b) The Trustee shall deliver or cause to be delivered the federal
taxpayer identification number of each Grantor Trust and a duly completed
Internal Revenue Service Form W-9 for each Grantor Trust to the respective Swap
Counterparty as soon as possible after the applicable Swap Contract is entered
into (but no later than the first payment date under the applicable Swap
Contract; provided that the Trustee has received the applicable taxpayer
identification numbers from the IRS by such date (and the Trustee is obligated
to use its best efforts to obtain such taxpayer identification number from the
IRS by such date)) and, if requested by the respective Swap Counterparty (unless
not permitted under federal income tax law) an applicable IRS Form W-8IMY. Each
non-exempt holders of the Class A-MFL and Class A-JFL Certificates shall be
obligated pursuant to this Agreement to provide applicable certification to the
Trustee (with copies sent or faxed directly from such Certificateholder to the
Swap Counterparty) to enable the Trustee to make payments to the holders of the
Class A-MFL and Class A-JFL Certificates without federal withholding or backup
withholding. As authorized by the Holders of the Class A-MFL and Class A-JFL
Certificates under this Agreement, the Trustee may forward any such
certification received to the respective Swap Counterparty if requested.
[End of Article IV]
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.
(a) The Certificates will be substantially in the respective forms
annexed hereto as Exhibits A-1 through and including A-30. The Certificates will
be issuable in registered form only; provided, however, that in accordance with
Section 5.03 beneficial ownership interests in the Regular Certificates shall
initially be held and transferred through the book-entry facilities of the
Depository. The Class R and Class LR Certificates will each be issuable in one
or more registered, definitive physical certificates (each, a "Definitive
Certificate") substantially in the form of Certificates of each Class and with
such applicable legends as are set forth in the Exhibits hereto corresponding to
such Class. Each Certificate will share ratably in all rights of the related
Class. The Class X-C and Class X-P Certificates will be issuable only in minimum
Denominations of authorized initial Notional Amount of not less than $1,000,000
and in integral multiples of $1.00 in excess thereof. The Class A-1, Class A-2,
Class A-3, Class A-4, Class A-M and Class A-J Certificates will be issuable only
in minimum Denominations of authorized initial Certificate Balance of not less
than $10,000, and in integral multiples of $1.00 in excess thereof. The Class B,
Class C and Class D Certificates will be issuable and in minimum Denominations
of authorized initial Notional Amount of not less than $25,000, and in integral
multiples of $1.00 in excess thereof. The Non-Registered Certificates (other
than the Class X Certificates and the Residual Certificates) will be issuable in
minimum Denominations of authorized initial Certificate Balance of not less than
$250,000, and in integral multiples of $1.00 in excess thereof. If the Original
Certificate Balance or initial Notional Amount, as applicable, of any Class does
not equal an integral multiple of $1.00, then a single additional Certificate of
such Class may be issued in a minimum denomination of authorized initial
Certificate Balance or initial Notional Amount, as applicable, that includes the
excess of (i) the Original Certificate Balance or initial Notional Amount, as
applicable, of such Class over (ii) the largest integral multiple of $1.00 that
does not exceed such amount. The Class R and Class LR Certificates will be
issuable only in one or more Definitive Certificates in denominations
representing Percentage Interests of not less than 20%. 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 or, (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 Depository Participants, as applicable,
(ii) expressed in terms of initial Certificate 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 herein. 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 Registrar by an authorized ▇▇▇▇▇▇.
Certificates bearing the manual or facsimile signatures of individuals who were
at any time the authorized signors of the Certificate Registrar 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
Authenticating Agent 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. ▇▇▇▇▇ Fargo Bank,
N.A., ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
Corporate Trust Services (CMBS) (GE Commercial Mortgage Corporation, Commercial
Mortgage Pass-Through Certificates, Series 2007-C1) is hereby initially
appointed Authenticating Agent with power to act on the Trustee's behalf in the
authentication and delivery of the Certificates in connection with transfers and
exchanges as herein provided. If the Authenticating Agent is terminated, the
Trustee shall appoint a successor Authenticating Agent, which may be the Trustee
or an Affiliate thereof.
(c) 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.
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 may
prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
▇▇▇▇▇ Fargo Bank, N.A., ▇▇▇▇▇ Fargo Center, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Services (CMBS) (GE
Commercial Mortgage Corporation, Commercial Mortgage Pass-Through Certificates,
Series 2007-C1) is hereby initially appointed Certificate Registrar for the
purpose of registering Certificates and transfers and exchanges of Certificates
as herein provided. The Certificate Registrar may appoint, by a written
instrument delivered to the Depositor, the Special Servicers and the Servicers,
any other bank or trust company to act as Certificate Registrar under such
conditions as the predecessor Certificate Registrar may prescribe, provided that
the predecessor Certificate Registrar shall not be relieved of any of its duties
or responsibilities hereunder by reason of such appointment. The Depositor, the
Trustee, the Servicers and the Special Servicer 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. The names and addresses
of all Certificateholders and the names and addresses of the transferees of any
Certificates shall be registered in the Certificate Register; provided, however,
in no event shall the Certificate Registrar be required to maintain in the
Certificate Register the names of Certificate Owners. The Person in whose name
any Certificate is so registered shall be deemed and treated as the sole owner
and Holder thereof for all purposes of this Agreement and the Certificate
Registrar, the Servicers, the Trustee, the Special Servicer and any agent of any
of them shall not be affected by any notice or knowledge to the contrary. A
Definitive Certificate is transferable or exchangeable only upon the surrender
of such Certificate to the Certificate Registrar at its office maintained at
▇▇▇▇▇ Fargo Center, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Corporate Trust Services (CMBS) (GE Commercial Mortgage
Corporation, Commercial Mortgage Pass-Through Certificates, Series 2007-C1) (the
"Registrar Office") together with an assignment and transfer (executed by the
Holder or his duly authorized attorney). Subject to the requirements of Sections
5.02(b), (c) and (d), the Certificate Registrar shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in Denominations of a
like aggregate Denomination as the Definitive Certificate being surrendered.
Such Certificates shall be delivered by the Certificate Registrar in accordance
with Section 5.02(e). Each Certificate surrendered for registration of transfer
shall be canceled, and the Certificate Registrar shall hold such canceled
Certificates in accordance with its standard procedures.
(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 which does not
require such registration or qualification. If a transfer (other than one by the
Depositor to an Affiliate thereof) is to be made in reliance upon an exemption
from the Securities Act, and under the applicable state securities laws, then
either:
(i) Rule 144A Book-Entry Certificate to Regulation S Book-Entry
Certificate on or Prior to the Release Date. If, on or prior to the
Release Date, a Certificate Owner of an interest in a Rule 144A Book-Entry
Certificate wishes at any time to transfer its beneficial interest in such
Rule 144A Book-Entry Certificate to a Person who wishes to take delivery
thereof in the form of a beneficial interest in a Regulation S Book-Entry
Certificate, such Certificate Owner may, in addition to complying with all
applicable rules and procedures of the Depository and Clearstream or
Euroclear applicable to transfers by their respective participants (the
"Depository Rules"), transfer or cause the transfer of such beneficial
interest for an equivalent beneficial interest in the Regulation S
Book-Entry Certificate only upon compliance with the provisions of this
Section 5.02(b)(i). Upon receipt by the Certificate Registrar at its
Corporate Trust Office of (A) written instructions given in accordance
with the Depository Rules from a Depository Participant directing the
Certificate Registrar to credit or cause to be credited to another
specified Depository Participant's account a beneficial interest in the
Regulation S Book-Entry Certificate in an amount equal to the Denomination
of the beneficial interest in the Rule 144A Book-Entry Certificate to be
transferred, (B) a written order given in accordance with the Depository
Rules containing information regarding the account of the Depository
Participant (and the Euroclear or Clearstream account, as the case may be)
to be credited with, and the account of the Depository Participant to be
debited for, such beneficial interest, and (C) a certificate in the form
of Exhibit N hereto given by the Certificate Owner that is transferring
such interest, the Certificate Registrar, as custodian of the Book-Entry
Certificates shall reduce the Denomination of the Rule 144A Book-Entry
Certificate by the Denomination of the beneficial interest in the Rule
144A Book-Entry Certificate to be so transferred and, concurrently with
such reduction, increase the Denomination of the Regulation S Book-Entry
Certificate by the Denomination of the beneficial interest in the Rule
144A Book-Entry Certificate to be so transferred, and credit or cause to
be credited to the account of the Person specified in such instructions
(who shall be a Depository Participant acting for or on behalf of
Euroclear or Clearstream, or both, as the case may be) a beneficial
interest in the Regulation S Book-Entry Certificate having a Denomination
equal to the amount by which the Denomination of the Rule 144A Book-Entry
Certificate was reduced upon such transfer, provided, that no ERISA
Restricted Certificate (without giving effect to clause (b)(ii) of such
definition) may be transferred to a Person who wishes to take delivery
under Regulation S.
(ii) Rule 144A Book-Entry Certificate to Regulation S Book-Entry
Certificate After the Release Date. If, after the Release Date, a
Certificate Owner of an interest in a Rule 144A Book-Entry Certificate
wishes at any time to transfer its beneficial interest in such Rule 144A
Book-Entry Certificate to a Person who wishes to take delivery thereof in
the form of a beneficial interest in a Regulation S Book-Entry
Certificate, such holder may, in addition to complying with all Depository
Rules, transfer or cause the transfer of such beneficial interest for an
equivalent beneficial interest in a Regulation S Book-Entry Certificate
only upon compliance with the provisions of this Section 5.02(b)(ii). Upon
receipt by the Certificate Registrar at its Corporate Trust Office of (A)
written instructions given in accordance with the Depository Rules from a
Depository Participant directing the Certificate Registrar to credit or
cause to be credited to another specified Depository Participant's account
a beneficial interest in the Regulation S Book-Entry Certificate in an
amount equal to the Denomination of the beneficial interest in the Rule
144A Book-Entry Certificate to be transferred, (B) a written order given
in accordance with the Depository Rules containing information regarding
the account of the Depository Participant (and, in the case of a transfer
pursuant to and in accordance with Regulation S, the Euroclear or
Clearstream account, as the case may be) to be credited with, and the
account of the Depository Participant to be debited for, such beneficial
interest, and (C) a certificate in the form of Exhibit O hereto given by
the Certificate Owner that is transferring such interest, the Certificate
Registrar as custodian of the Book-Entry Certificates shall reduce the
Denomination of the Rule 144A Book-Entry Certificate by the aggregate
Denomination of the beneficial interest in the Rule 144A Book-Entry
Certificate to be so transferred and, concurrently with such reduction,
increase the Denomination of the Regulation S Book-Entry Certificate by
the aggregate Denomination of the beneficial interest in the Rule 144A
Book-Entry Certificate to be so transferred, and credit or cause to be
credited to the account of the Person specified in such instructions (who
shall be a Depository Participant acting for or on behalf of Euroclear or
Clearstream, or both, as the case may be) a beneficial interest in the
Regulation S Book-Entry Certificate having a Denomination equal to the
amount by which the Denomination of the Rule 144A Book-Entry Certificate
was reduced upon such transfer, provided, that no ERISA Restricted
Certificate (without giving effect to clause (b)(ii) of the definition
thereof) may be transferred to a Person who wishes to take delivery under
Regulation S.
(iii) Regulation S Book-Entry Certificate to Rule 144A Book-Entry
Certificate. If the Certificate Owner of an interest in a Regulation S
Book-Entry Certificate wishes at any time to transfer its beneficial
interest in such Regulation S Book-Entry Certificate to a Person who
wishes to take delivery thereof in the form of a beneficial interest in
the Rule 144A Book-Entry Certificate, such Certificate Owner may, in
addition to complying with all Depository Rules, transfer or cause the
transfer of such beneficial interest for an equivalent beneficial interest
in the Rule 144A Book-Entry Certificate only upon compliance with the
provisions of this Section 5.02(b)(iii). Upon receipt by the Certificate
Registrar at its Corporate Trust Office of (A) written instructions given
in accordance with the Depository Rules from a Depository Participant
directing the Certificate Registrar to credit or cause to be credited to
another specified Depository Participant's account a beneficial interest
in the Rule 144A Book-Entry Certificate in an amount equal to the
Denomination of the beneficial interest in the Regulation S Book-Entry
Certificate to be transferred, (B) a written order given in accordance
with the Depository Rules containing information regarding the account of
the Depository Participant to be credited with, and the account of the
Depository Participant (or, if such account is held for Euroclear or
Clearstream, the Euroclear or Clearstream account, as the case may be) to
be debited for such beneficial interest, and (C) with respect to a
transfer of a beneficial interest in the Regulation S Book-Entry
Certificate for a beneficial interest in the related Rule 144A Book-Entry
Certificate (i) on or prior to the Release Date, a certificate in the form
of Exhibit P hereto given by the Certificate Owner, or (ii) after the
Release Date, an Investment Representation Letter in the form of Exhibit C
attached hereto from the transferee to the effect that such transferee is
a Qualified Institutional Buyer, the Certificate Registrar, as custodian
of the Book-Entry Certificates, shall reduce the Denomination of the
Regulation S Book-Entry Certificate by the Denomination of the beneficial
interest in the Regulation S Book-Entry Certificate to be transferred,
and, concurrently with such reduction, increase the Denomination of the
Rule 144A Book-Entry Certificate by the aggregate Denomination of the
beneficial interest in the Regulation S Book-Entry Certificate to be so
transferred, and credit or cause to be credited to the account of the
Person specified in such instructions (who shall be a Depository
Participant acting for or on behalf of Euroclear or Clearstream, or both,
as the case may be) a beneficial interest in the Rule 144A Book-Entry
Certificate having a Denomination equal to the amount by which the
Denomination of the Regulation S Book-Entry Certificate was reduced upon
such transfer.
(iv) Transfers of Regulation S Book-Entry Certificates on or Prior
to the Release Date. If, on or prior to the Release Date, the Certificate
Owner of an interest in a Regulation S Book-Entry Certificate wishes at
any time to transfer its beneficial interest in such Certificate to a
Person who wishes to take delivery thereof in the form of a Regulation S
Book-Entry Certificate, such Certificate Owner may transfer or cause the
transfer of such beneficial interest for an equivalent beneficial interest
in such Regulation S Book-Entry Certificate only upon compliance with the
provisions of this Section 5.02(b)(iv) and all Depository Rules. Upon
receipt by the Certificate Registrar at its Corporate Trust Office of (A)
written instructions given in accordance with the Depository Rules from a
Depository Participant directing the Certificate Registrar to credit or
cause to be credited to another specified Depository Participant's account
a beneficial interest in such Regulation S Book-Entry Certificate in an
amount equal to the Denomination of the beneficial interest to be
transferred, (B) a written order given in accordance with the Depository
Rules containing information regarding the account of the Depository
Participant to be credited with, and the account of the Depository
Participant (or, if such account is held for Euroclear or Clearstream, the
Euroclear or Clearstream account, as the case may be) to be debited for,
such beneficial interest and (C) a certificate in the form of Exhibit Q
hereto given by the transferee, the Certificate Registrar, as custodian of
the Book-Entry Certificates, shall debit the account of the transferring
Regulation S Certificateholder and credit or cause to be credited to the
account of the Person specified in such instructions (who shall be a
Depository Participant acting for or on behalf of Euroclear or
Clearstream, or both, as the case may be) a beneficial interest in the
Regulation S Book-Entry Certificate having a Denomination equal to the
amount specified in such instructions by which the account to be debited
was reduced upon such transfer.
(v) Transfers of Book-Entry Certificates to Definitive Certificates.
Any and all transfers from a Book-Entry Certificate to a transferee
wishing to take delivery in the form of a Definitive Certificate will
require the transferee to take delivery subject to the restrictions on the
transfer of such Definitive Certificate described on the face of such
Certificate, and such transferee agrees that it will transfer such
Definitive Certificate only as provided therein and herein. No such
transfer shall be made and the Certificate Registrar shall not register
any such transfer unless such transfer is made in accordance with this
Section 5.02(b)(v). No ERISA Restricted Certificate (without giving effect
to clause (b)(ii) of the definition thereof) may be transferred to a
Person who wishes to take delivery under Regulation S.
(A) Transfers of a beneficial interest in a Book-Entry
Certificate to an Institutional Accredited Investor will require
delivery of such Certificate to the transferee in the form of a
Definitive Certificate and the Certificate Registrar shall register
such transfer only if prior to the transfer (i) two years have
expired after the later of the Closing Date or the last date on
which the Depositor or any Affiliate thereof held such Certificate,
or (ii) such transferee furnishes to the Certificate Registrar (1)
an Investment Representation Letter in the form of Exhibit C
attached hereto to the effect that the transfer is being made to an
Institutional Accredited Investor in accordance with an applicable
exemption under the Act, (2) a written undertaking by the transferor
to reimburse the Trust Fund for any costs incurred with the proposed
transfer and (3) if required by the Certificate Registrar, an
Opinion of Counsel acceptable to the Certificate Registrar that such
transfer is in compliance with the Act.
(B) Transfers of a beneficial interest in a Book-Entry
Certificate to a Regulation S Investor wishing to take delivery in
the form of a Definitive Certificate will be registered by the
Certificate Registrar only if the transferor has provided the
Certificate Registrar with a certificate in the form of Exhibit S
attached hereto, provided, that no ERISA Restricted Certificate
(without giving effect to clause (b)(ii) of the definition thereof)
may be transferred to a Person who wishes to take delivery under
Regulation S. Transfers of a beneficial interest in a Book-Entry
Certificate to a Qualified Institutional Buyer wishing to take
delivery in the form of a Definitive Certificate will be registered
by the Certificate Registrar only if such transferee furnishes to
the Certificate Registrar an Investment Representation Letter in the
form of Exhibit C attached hereto to the effect that the transfer is
being made to a Qualified Institutional Buyer in accordance with
Rule 144A under the Act.
(C) Notwithstanding the foregoing, no transfer of a beneficial
interest in a Regulation S Book-Entry Certificate to a Definitive
Certificate pursuant to subparagraph (B) above shall be made on or
prior to the Release Date. 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 the 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.
(vi) Transfers of Definitive Certificates to the Book-Entry
Certificates. 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 related Regulation S
Book-Entry Certificate or the related Rule 144A Book-Entry Certificate,
such transfer may be effected only in accordance with the Depository
Rules, and this Section 5.02(b)(vi). Upon receipt by the Certificate
Registrar at the Corporate Trust Office of (A) the Definitive Certificate
to be transferred with an assignment and transfer pursuant to Section
5.02(e), (B) written instructions given in accordance with the Depository
Rules from a Depository Participant directing the Certificate Registrar to
credit or cause to be credited to another specified Depository
Participant's account a beneficial interest in such Regulation S
Book-Entry Certificate or such Rule 144A Book-Entry Certificate, as the
case may be, in an amount equal to the Denomination of the Definitive
Certificate to be so transferred, (C) a written order given in accordance
with the Depository Rules containing information regarding the account of
the Depository Participant (and, in the case of any transfer pursuant to
Regulation S, the Euroclear or Clearstream account, as the case may be) to
be credited with such beneficial interest, and (D) either (1) (x) if
delivery is to be taken in the form of a beneficial interest in the
Regulation S Book-Entry Certificate on or prior to the Release Date, a
certificate in the form of Exhibit R-1, or (y) if delivery is to be taken
in the form of a beneficial interest in the Regulation S Book-Entry
Certificate after the Release Date, a certificate in the form of Exhibit
R-2, or (2) an Investment Representation Letter from the transferee to the
effect that such transferee is a Qualified Institutional Buyer, if
delivery is to be taken in the form of a beneficial interest in the Rule
144A Book-Entry 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, and the Certificate Registrar, as
custodian of the Book-Entry Certificates, shall increase the Denomination
of the Regulation S Book-Entry Certificate or the Rule 144A Book-Entry
Certificate, as the case may be, by the Denomination of the Definitive
Certificate to be so transferred, and credit or cause to be credited to
the account of the Person specified in such instructions (who, in the case
of any increase in the Regulation S Book-Entry Certificate on or prior to
the Release Date, shall be a Depository Participant acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be) a
corresponding Denomination of the Rule 144A Book-Entry Certificate or the
Regulation S Book-Entry Certificate, as the case may be, provided, that no
ERISA Restricted Certificate (without giving effect to clause (b)(ii) of
the definition thereof) may be transferred to a Person who wishes to take
delivery under Regulation S.
It is the intent of the foregoing that under no circumstances may an
Institutional Accredited Investor that is not a Qualified Institutional Buyer
take delivery in the form of a beneficial interest in a Book-Entry Certificate.
(vii) Transfers of Definitive Certificates to Definitive
Certificates. Any and all transfers from a Definitive Certificate to a
transferee wishing to take delivery in the form of an Definitive
Certificate will require the transferee to take delivery subject to the
restrictions on the transfer of such Definitive Certificate described on
the face of such Certificate, and such transferee agrees that it will
transfer such Definitive Certificate only as provided therein and herein.
No such transfer shall be made and the Certificate Registrar shall not
register any such transfer unless such transfer is made in accordance with
procedures substantially consistent with those set forth in Section
5.02(b)(v).
(viii) An exchange of a beneficial interest in a Book-Entry
Certificate for a Definitive Certificate or Certificates, an exchange of a
Definitive Certificate or Certificates for a beneficial interest in the
Book-Entry Certificate and an exchange of a Definitive Certificate or
Certificates for another Definitive Certificate or Certificates (in each
case, whether or not such exchange is made in anticipation of subsequent
transfer, and in the case of the Book-Entry Certificates, so long as the
Book-Entry Certificates remain outstanding and are held by or on behalf of
the Depository), may be made only in accordance with this Section 5.02 and
in accordance with the Depository Rules.
None of the Depositor, the Trustee, the Special Servicer, the
Servicers 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 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.
Any purported or attempted transfer of a Non-Registered Certificate
in violation of the provisions of this Section 5.02(b) shall be null and void ab
initio and shall vest no rights in any purported transferee.
Unless the Non-Registered Certificates have been registered under
the Securities Act, each of the Non-Registered Certificates shall bear a legend
substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES
LAWS. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
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 WHOM THE SELLER REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C)
(OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE) 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, (D) (OTHER THAN WITH RESPECT TO A RESIDUAL
CERTIFICATE OR AN ERISA RESTRICTED CERTIFICATE (WITHOUT GIVING
EFFECT TO CLAUSE (b)(ii) OF SUCH DEFINITION)) IN AN OFFSHORE
TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT OR (E) (OTHER THAN WITH
RESPECT TO A RESIDUAL CERTIFICATE) 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 REGISTRAR OF A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST TWO PAGES
OF THIS CERTIFICATE.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT
PURCHASER OF THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN
INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN
TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN INVESTMENT
REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED
INSTITUTIONAL BUYER OR (OTHER THAN WITH RESPECT TO A RESIDUAL
CERTIFICATE) AN INSTITUTIONAL ACCREDITED INVESTOR, AND MAY ALSO BE
REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH TRANSFEREE IS NOT
A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A.
(c) With respect to the ERISA Restricted 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 F attached hereto, to the
effect that such proposed purchaser or transferee is not (a) an employee benefit
plan or other retirement arrangement subject to the fiduciary responsibility
provisions of ERISA or 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") 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
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 (ii) if
such Certificate is presented for registration in the name of a purchaser or
transferee that is any of the foregoing, an Opinion of Counsel in form and
substance satisfactory to the Certificate Registrar and the Depositor to the
effect that the acquisition and holding of such Certificate by such purchaser or
transferee will not constitute or result in a non-exempt "prohibited
transaction" within the meaning of ERISA, Section 4975 of the Code or any
Similar Law, and will not subject the Trustee, the Certificate Registrar, the
Servicers, the Special Servicer, the Underwriters, the Initial Purchasers or the
Depositor to any obligation or liability (including obligations or liabilities
under ERISA, Section 4975 of the Code or any such Similar Law) in addition to
those set forth in the 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) above or the Opinion of Counsel described in clause (ii)
above. The costs of any of the foregoing representation letters or Opinions of
Counsel shall not be borne by any of the Depositor, the Servicers, the Special
Servicer, the Trustee, the Underwriters, the Initial Purchasers, the Certificate
Registrar or the Trust Fund. Each Certificate Owner of an ERISA Restricted
Certificate shall be deemed to represent that it is not a Person specified in
clauses (i)(a) or (i)(b) above. 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,
each 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 such Servicer, the Special
Servicer or the Mortgage Loans 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 Residual Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following provisions
and to have irrevocably authorized the Trustee under clause (ii) below to
deliver payments to a Person other than such Person. The rights of each Person
acquiring any Ownership Interest in a Residual Certificate are expressly subject
to the following provisions:
(A) (i) No Person holding or acquiring any Ownership Interest
in a Residual Certificate shall be a Disqualified Organization or
agent thereof (including a nominee, middleman or similar person) (an
"Agent"), a Plan or a Person acting on behalf of or investing the
assets of a Plan, including any entity whose underlying assets
include Plan assets by reason of investment in the entity by such
Plan and the application of Department of Labor Regulations ss.
2510.3-101 (such Plan or Person, an "ERISA Prohibited Holder") or a
Non-U.S. Person and (ii) each Person holding or acquiring any
Ownership Interest in a Residual Certificate shall be a Permitted
Transferee and in each case shall promptly notify the Servicers, the
Trustee and the Certificate Registrar of any change or impending
change to such status;
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate, the Certificate Registrar shall
require delivery to it, and no Transfer of any Residual Certificate
shall be registered until the Certificate Registrar receives, an
affidavit substantially in the form attached hereto as Exhibit D-1
(a "Transfer Affidavit") from the proposed Transferee, in form and
substance satisfactory to the Certificate Registrar, representing
and warranting, among other things, (a) that such Transferee is a
Permitted Transferee and is not a Disqualified Organization or Agent
thereof, an ERISA Prohibited Holder or a Non-U.S. Person, (b) that
(i) the proposed Transferee historically has paid its debts as they
have come due and intends to do so in the future, (ii) the proposed
Transferee understands that, as the holder of an Ownership Interest,
it may incur liabilities in excess of cash flows generated by the
residual interest, and (iii) the proposed Transferee intends to pay
taxes associated with holding the Ownership Interest as they become
due, (c) that it will not transfer such Ownership Interest such that
the income therefrom would be attributable to a foreign permanent
establishment or fixed base, within the meaning of an applicable
income tax treaty, of such proposed transferee or any other Person,
outside the United States, and (d) 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 by a
proposed Transferee under clause (b) above, if the Certificate
Registrar has actual knowledge that the proposed Transferee is a
Disqualified Organization or Agent thereof, an ERISA Prohibited
Holder or a Non-U.S. Person or is not a Permitted Transferee, no
Transfer of an Ownership Interest in a Residual Certificate to such
proposed Transferee shall be effected; and
(D) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall agree (1) to require a Transfer
Affidavit from any prospective Transferee to whom such Person
attempts to transfer its Ownership Interest in such Residual
Certificate and (2) not to transfer its Ownership Interest in such
Residual Certificate unless it provides to the Certificate Registrar
a letter substantially in the form attached hereto as Exhibit D-2 (a
"Transferor Letter") certifying that, among other things, it has no
actual knowledge that such prospective Transferee is a Disqualified
Organization or Agent thereof, an ERISA Prohibited Holder or a
Non-U.S. Person.
(ii) If any purported Transferee shall become a Holder of a Residual
Certificate in violation of the provisions of this Section 5.02(d), then
the last preceding Holder of such 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 Residual
Certificate. None of the Trustee, the Servicers, the Authenticating Agent
and the Certificate Registrar shall be under any liability to any Person
for any registration of Transfer of a 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; provided,
however, that the Certificate Registrar shall be under such liability for
a registration of Transfer of a Residual Certificate if it has actual
knowledge that the proposed Transferee is a Disqualified Organization or
Agent thereof, an ERISA Prohibited Holder or a Non-U.S. Person in
violation of Section 5.02(d)(i)(C) above or is not a Permitted Transferee.
(iii) The Trustee shall make available to the Internal Revenue
Service and those Persons specified by the REMIC Provisions, upon written
request of the Trustee, all information in its possession and necessary to
compute any tax imposed as a result of the Transfer of an Ownership
Interest in a Residual Certificate to any Person who is a Disqualified
Organization or Agent 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 Residual Certificate.
(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 Registrar
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 for a Definitive Certificate or Certificates. Following a proper
request for transfer or exchange, the Certificate Registrar shall, within five
Business Days of such request made at such Registrar Office, execute and deliver
at such Registrar Office, 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. The
presentation for transfer or exchange of any Definitive Certificate shall not be
valid unless made at the Registrar Office by the registered Holder in person, or
by a duly authorized attorney-in-fact. The Certificate Registrar may decline to
accept any request for an exchange or registration of transfer of any
Certificate during the period of 15 days preceding any Distribution Date.
(f) In the event a Responsible Officer of the Certificate Registrar
becomes aware that a Definitive Certificate (other than a Definitive Certificate
issued in exchange for a Certificate representing an interest in the Class A-1,
Class A-2, Class A-3, Class A-AB, Class A-4, Class A-M, Class A-J, Class B,
Class C or Class D Certificates) 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 Eligible 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 Eligible 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) The Certificate Registrar shall provide notice to the Trustee,
the Servicers, the Special Servicer, and the Depositor of each transfer of a
Certificate on its books and records and shall provide each such Person with an
updated copy of the Certificate Register upon request.
(h) No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in this Section 5.02 except as provided below. 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. With respect to any transfer or exchange of any Certificate, the
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer or exchange.
(i) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate Registrar
shall hold such canceled Certificates in accordance with its standard
procedures.
Section 5.03 Book-Entry Certificates.
(a) The Regular 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) below, 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 Section 5.02(e) above or subsection (c) below, shall not be entitled
to Definitive Certificates in respect of such Ownership Interests. All transfers
by Certificate Owners of their respective Ownership Interests in the Book-Entry
Certificates shall be made in accordance with the procedures established by the
Depository Participant or brokerage firm representing such Certificate Owner.
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.
(b) The Trustee, the Servicers, the Special Servicer, the Depositor
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 Registrar 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.
(c) If (i)(A) the Depositor advises the Trustee and the Certificate
Registrar in writing that the Depository is no longer willing or able to
properly discharge its responsibilities with respect to the Book-Entry
Certificates and (B) the Depositor is unable to locate a qualified successor, or
(ii) the Depositor at its option advises the Trustee and the Certificate
Registrar in writing that it elects to terminate the book-entry system through
the Depository, the Trustee shall notify the affected Certificate Owners,
through the Depository with respect to all, any Class or any portion of any
Class of the Certificates or (iii) the Trustee determines that Definitive
Certificates are required in accordance with the provisions of Section 5.03(e),
of the occurrence of any such event and of the availability of Definitive
Certificates to Certificate Owners requesting the same. Upon surrender to the
Certificate Registrar of the Book-Entry Certificates by the Depository or any
custodian acting on behalf of the Depository, accompanied by registration
instructions from the Depository for registration of transfer, the Certificate
Registrar shall execute, and the Authenticating Agent shall authenticate and
deliver, within five Business Days of such request if made at the Registrar
Office, or within 10 Business Days if made at the office of a transfer agent
(other than the Certificate Registrar), the Definitive Certificates to the
Certificate Owners identified in such instructions. None of the Depositor, the
Servicers, the Trustee, the Special Servicer, the Authenticating Agent and 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. Upon the issuance of Definitive Certificates for purposes of
evidencing ownership of any Class of Certificates, the registered Holders of
such Definitive Certificates shall be recognized as Certificateholders hereunder
and, accordingly, shall be entitled directly to receive payments on, to exercise
Voting Rights with respect to, and to transfer and exchange such Definitive
Certificates.
(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) If the Trustee has instituted or if the Special Servicer or a
Servicer, on the Trustee's behalf, has been directed to institute any judicial
proceeding in a court to enforce the rights of the Certificateholders under the
Certificates, and the Trustee has been advised by counsel that in connection
with such proceeding it is necessary or appropriate for the Trustee to obtain
possession of all or any portion of the Certificates evidenced by Book-Entry
Certificates, the Trustee may in its sole discretion determine that such
Certificates shall no longer be represented by such Book-Entry Certificates. In
such event, the Certificate Registrar will execute, the Authenticating Agent
will authenticate and the Certificate Registrar will deliver, in exchange for
such Book-Entry Certificates, Definitive Certificates in a Denomination equal to
the aggregate Denomination of such Book-Entry Certificates to the party so
requesting such Definitive Certificates. In such event, the Certificate
Registrar shall notify the affected Certificate Owners and make appropriate
arrangements for the effectuation of the purpose of this clause.
(f) 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.
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate and (ii) there is delivered to
the Trustee and the Certificate Registrar such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of actual
notice to the Certificate Registrar that such Certificate has been acquired by a
bona fide purchaser, the Certificate Registrar shall execute, and the
Authenticating Agent 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 of like Percentage Interest. Upon the issuance of any new
Certificate under this Section, the Trustee and the Certificate Registrar may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee and the Certificate Registrar) connected
therewith. Any replacement Certificate issued pursuant to this Section shall
constitute complete and indefeasible evidence of ownership in the Trust Fund, 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 presentation of a Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar and any agents of any of them may treat the person in
whose name such 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, except as and to the extent provided in the
definition of "Certificateholder," and none of the Depositor, the Servicers, the
Special Servicer, the Trustee, the Certificate Registrar and any agent of any of
them shall be affected by notice to the contrary except as provided in Section
5.02(d).
[End of Article V]
ARTICLE VI
THE DEPOSITOR, THE SERVICERS, THE SPECIAL SERVICER AND THE DIRECTING
CERTIFICATEHOLDER
Section 6.01 Liability of the Depositor, the Servicers and the
Special Servicer.
The Depositor, the Servicers and the Special Servicer shall be
liable in accordance herewith only to the extent of the respective obligations
specifically imposed upon and undertaken by the Depositor, the Servicers and the
Special Servicer herein.
Section 6.02 Merger, Consolidation or Conversion of the Depositor,
the Servicers or the Special Servicer.
(a) Subject to subsection (b) below, the Depositor, the Servicers
and the Special Servicer each will keep in full effect its existence, rights and
franchises under the laws of the jurisdiction of its incorporation or
organization, and each will obtain and preserve its qualification to do business
as a foreign corporation or other organization 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 Servicers and the Special Servicer each may
be merged or consolidated with or into any Person, or transfer all or
substantially all of its assets (which may be limited to all or substantially
all of its assets related to commercial mortgage loan servicing) to any Person,
in which case any Person resulting from any merger or consolidation to which the
Depositor, any Servicer or the Special Servicer shall be a party, or any Person
succeeding to the business of the Depositor, any Servicer or the Special
Servicer, shall be the successor of the Depositor, any Servicer and the Special
Servicer, as the case may be, hereunder, without the execution or filing of any
paper (other than an assumption agreement wherein the successor shall agree to
perform the obligations of and serve as the Depositor, the applicable Servicer
or the Special Servicer, as the case may be, in accordance with the terms of
this Agreement) or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding; provided, however, that the
Depositor, the applicable Servicer and the Special Servicer, as the case may be,
shall provide written notice to each Rating Agency of such merger, consolidation
or succession and provided, further, that each applicable Rating Agency shall
have provided written confirmation that such merger, consolidation or succession
will not result in a withdrawal, downgrade or qualification of the then-current
ratings of the Classes of Certificates or any class of Serviced Companion Loan
Securities that have been so rated (as evidenced by a letter to such effect from
each Rating Agency). Notwithstanding the foregoing, prior to the date upon which
the Trust's Exchange Act reporting obligation is suspended by the filing of the
Form 15 as contemplated by Section 11.10, neither the applicable Servicer nor
the Special Servicer may remain a Servicer or Special Servicer under this
Agreement after (x) being merged or consolidated with or into any Person that is
a Prohibited Party, or (y) transferring all or substantially all of its assets
to any Person if such Person is a Prohibited Party, except to the extent (i)
such Servicer or Special Servicer is the surviving entity of such merger,
consolidation or transfer or (ii) the Depositor consents to such merger,
consolidation or transfer, which consent shall not be unreasonably withheld.
Section 6.03 Limitation on Liability of the Depositor, the Servicer,
the Special Servicer and Others.
(a) None of the Depositor, the Servicers, the Special Servicer or
their Affiliates or any of the respective general partners, limited partners,
members, shareholders, managers, directors, officers, employees or agents of any
of the foregoing shall be under any liability to the Trust, the
Certificateholders or any holder of any Serviced Companion Loan for any action
taken or for refraining from the taking of any action in good faith pursuant to
this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Depositor, the Servicers, the Special Servicer
or any such Person against any breach of warranties or representations made
herein or 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 obligations and duties hereunder. The Depositor, the
Servicers and the Special Servicer and their Affiliates and any general partner,
limited partner, shareholders, director, officer, member, manager, employee or
agent of the Depositor, such Servicer or the Special Servicer and their
Affiliates may rely in good faith on any document of any kind which, prima
facie, is properly executed and submitted by any Person respecting any matters
arising hereunder. The Depositor, the Servicers, the Special Servicer and their
Affiliates and any general partner, limited partner, director, officer,
shareholders, member, manager, employee or agent of any of the foregoing shall
be indemnified and held harmless by the Trust out of the Certificate Account (or
if such matter relates to a Serviced Whole Loan, first out of the related
Serviced Whole Loan Custodial Account and then, if funds therein are
insufficient, out of the Certificate Account) against 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 (whether in equity or at law) or
claim relating to this Agreement or the Certificates, other than any loss,
liability or expense: (i) specifically required to be borne thereby pursuant to
the terms hereof; (ii) incurred in connection with any breach of a
representation or warranty made by it herein; (iii) incurred by reason of bad
faith, willful misconduct or negligence in the performance of its obligations or
duties hereunder, or by reason of negligent disregard of such obligations or
duties or (iv) in the case of the Depositor and any of its directors, officers,
employees and agents, incurred in connection with any violation by any of them
of any state or federal securities law; provided that if a Serviced Whole Loan
is involved, such indemnity shall be payable out of the related Serviced Whole
Loan Custodial Account and, to the extent amounts on deposit in the related
Serviced Whole Loan Custodial Account are insufficient therefor, out of the
Certificate Account. With respect to indemnification related to a Serviced Whole
Loan, the Trustee or the applicable Servicer shall seek contribution from the
trustee of the related Other Securitization for the pro rata share of any
indemnification that is allocable to such Serviced Companion Loan, to the extent
permitted by the related Co-Lender Agreement. With respect to indemnification
related to a Non-Serviced Whole Loan, the Trustee or the applicable Servicer
shall seek contribution from the trustee related to any Non-Serviced Companion
Loan Securities for the pro rata share of any indemnification that is allocable
to such Non-Serviced Pari Passu Loan.
(b) None of the Depositor, the Servicers and the Special Servicer
shall be under any obligation to appear in, prosecute or defend any legal or
administrative action (whether in equity or at law), proceeding, hearing or
examination that is not incidental to its respective duties under this Agreement
or which in its opinion may involve it in any expense or liability not
recoverable from the Trust Fund; provided, however, that the Depositor, each
Servicer or the Special Servicer may in its discretion undertake any such
action, proceeding, hearing or examination that it may deem necessary or
desirable in respect to this Agreement and the rights and duties of the parties
hereto and the interests of the Certificateholders (or if a Serviced Whole Loan
is affected, the rights of the Certificateholders and the holders of any related
Serviced Companion Loan (as a collective whole)); provided, however, that, if a
Serviced Whole Loan is involved, such expenses, costs and liabilities shall be
payable out of the related Serviced Whole Loan Custodial Account and to the
extent amounts on deposit in the related Serviced Whole Loan Custodial Account
are insufficient therefor out of the Certificate Account. With respect to any
such expenses, costs and liabilities related to a Serviced Whole Loan, the
Trustee or the applicable Servicer shall use commercially reasonable efforts to
seek contribution from the trustee of the related Other Securitization for the
pro rata share of any such expenses, costs and liabilities that are allocable to
such Serviced Companion Loan, to the extent permitted by the related Co-Lender
Agreement and the related Other Pooling and Servicing Agreement.
In such event, the legal expenses and costs of such action,
proceeding, hearing or examination and any liability resulting therefrom shall
be expenses, costs and liabilities of the Trust Fund, and the Depositor, each
Servicer and the Special Servicer shall be entitled to be reimbursed therefor
out of amounts attributable to the Mortgage Loans on deposit in the Certificate
Account as provided by Section 3.05(a) (or, if and to the extent the matter
relates solely to the Serviced Pari Passu Loans, out of the related Serviced
Whole Loan Custodial Account).
(c) Each of the Servicers and the Special Servicer agrees to
indemnify the Depositor, the Trustee, the Trust and any director, officer,
employee or agent thereof, and hold them harmless, from and against any and all
claims, losses, damages, penalties, fines, forfeitures, reasonable legal fees
and related costs, judgments, and any other costs, liabilities, fees and
expenses that any of them may sustain arising from or as a result of any willful
misfeasance, bad faith or negligence of such Servicer or the Special Servicer,
as the case may be, in the performance of its obligations and duties under this
Agreement or by reason of negligent disregard by such Servicer or the Special
Servicer, as the case may be, of its duties and obligations hereunder or by
reason of breach of any representations or warranties made herein; provided,
that such indemnity shall not cover indirect or consequential damages. The
Trustee or the Depositor, as the case may be, shall immediately notify the
applicable Servicer or the Special Servicer, as applicable, if a claim is made
by a third party with respect to this Agreement or the Mortgage Loans entitling
it to indemnification hereunder, whereupon such Servicer or the Special
Servicer, as the case may be, shall assume the defense of such claim (with
counsel reasonably satisfactory to the Trustee or the Depositor) and pay all
expenses in connection therewith, including reasonable counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against it or them in respect of such claim. Any failure to so notify the
applicable Servicer or the Special Servicer, as the case may be, shall not
affect any rights any of the foregoing Persons may have to indemnification under
this Agreement or otherwise, unless such Servicer's or the Special Servicer's,
as the case may be, defense of such claim is materially prejudiced thereby.
(d) Each Non-Serviced Mortgage Loan Servicer, Non-Serviced Mortgage
Loan Special Servicer, Non-Serviced Mortgage Loan Depositor and Non-Serviced
Mortgage Loan Trustee, and any of their respective directors, officers,
employees or agents (collectively, the "Non-Serviced Mortgage Loan Indemnified
Parties"), shall be indemnified by the Trust and held harmless against the
Trust's pro rata share (subject to the related Co-Lender 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 related
Non-Serviced Whole Loan under the related Non-Serviced Mortgage Loan Pooling
Agreement or this Agreement (but excluding any such losses allocable to the
related Non-Serviced Pari Passu Loan), reasonably requiring the use of counsel
or the incurring of expenses; provided, however, that such indemnification shall
not extend to any losses incurred by reason of any Non-Serviced Mortgage Loan
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 related Non-Serviced Mortgage Loan Pooling Agreement.
(e) The indemnification provided herein shall survive the
termination of this Agreement and the termination or resignation of either
Servicer, the Trustee and the Special Servicer.
Section 6.04 Depositor, Servicer and Special Servicer Not to Resign.
Subject to the provisions of Section 6.02, none of the Depositor,
the Servicers and the Special Servicer shall resign from their respective
obligations and duties hereby imposed on each of them except upon (a)
determination that such party's duties hereunder are no longer permissible under
applicable law or (b) upon the appointment of, and the acceptance of such
appointment by, a successor Servicer or Special Servicer and receipt by the
Trustee of written confirmation from each applicable Rating Agency that such
resignation and appointment will not cause such Rating Agency to downgrade,
withdraw or qualify any of the then current ratings assigned by such Rating
Agency to any Class of Certificates or any class of Serviced Companion Loan
Securities. Any such determination permitting the resignation of the Depositor,
the Servicer or the Special Servicer pursuant to clause (a) above shall be
evidenced by an Opinion of Counsel (at the expense of the resigning party) to
such effect delivered to the Trustee. No such resignation by any Servicer or the
Special Servicer shall become effective until the Trustee or a successor
Servicer or Special Servicer shall have assumed such Servicer's or Special
Servicer's, as applicable, responsibilities and obligations in accordance with
Section 7.02. Such party assuming the applicable Servicer's or the Special
Servicer's, as applicable, responsibilities or obligations pursuant to this
Agreement shall not be a Prohibited Party. Upon any termination or resignation
of any Servicer hereunder, such Servicer shall have the right and opportunity to
appoint any successor Servicer with respect to this Section 6.04 provided that
such successor Servicer otherwise meets the requirements set forth herein.
Section 6.05 Rights of the Depositor in Respect of the Servicers and
the Special Servicer.
The Depositor may, but is not obligated to, enforce the obligations
of each Servicer and the Special Servicer hereunder and may, but is not
obligated to, perform, or cause a designee to perform, any defaulted obligation
of any Servicer and the Special Servicer hereunder or exercise the rights of any
Servicer or Special Servicer, as applicable, hereunder; provided, however, that
each Servicer and the Special Servicer shall not be relieved of any of their
respective 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 each Servicer or the Special Servicer and is
not obligated to supervise the performance of each Servicer or the Special
Servicer under this Agreement or otherwise.
Section 6.06 Reserved.
Section 6.07 The Directing Certificateholder.
(a) The Directing Certificateholder shall have no liability
whatsoever to the Trust Fund or any Certificateholder other than the Controlling
Class Certificateholders and shall have no liability to any Controlling Class
Certificateholder for any action taken, or for refraining from the taking of any
action, in good faith pursuant to this Agreement, or for errors in judgment;
provided, however, that, with respect to Controlling Class Certificateholders,
the Directing Certificateholder shall 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 reckless disregard of
obligations or duties. By its acceptance of a Certificate, each
Certificateholder confirms its understanding that the Directing
Certificateholder 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 may have special relationships and interests that
conflict with those of Holders of some Classes of the Certificates, that the
Directing Certificateholder may act solely in the interests of the Holders of
the Controlling Class, that the Directing Certificateholder does not have any
duties to the Holders of any Class of Certificates other than the Controlling
Class, that the Directing Certificateholder may take actions that favor the
interests of the Holders of the Controlling Class over the interests of the
Holders of one or more other classes of Certificates, that the Directing
Certificateholder, absent willful misfeasance, bad faith or negligence, shall
not 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, and that the Directing
Certificateholder shall have no liability whatsoever for having so acted, and no
Certificateholder may take any action whatsoever against the Directing
Certificateholder or any director, officer, employee, agent or principal thereof
for having so acted.
(b) Within five Business Days of receipt of written notice that a
new Directing Certificateholder has been selected, the Trustee shall deliver
notice to the Servicers and the Special Servicer, of such Directing
Certificateholder's identity.
[End of Article VI]
ARTICLE VII
DEFAULT
Section 7.01 Events of Default; Servicer and Special Servicer
Termination.
(a) "Event of Default," wherever used herein, means any one of the
following events:
(i) (A) any failure by the Servicer to make any deposit required to
be made by the Servicer to the Certificate Account or the Serviced Whole
Loan Custodial Account on the day and by the time such remittance is
required to be made under the terms of this Agreement, which failure is
not remedied within one Business Day or (B) any failure by the Servicer to
deposit into, or remit to the Trustee for deposit into, any Distribution
Account any amount required to be so deposited or remitted (including any
required P&I Advance, unless the Servicer determines that such P&I Advance
is a Nonrecoverable Advance), which failure is not remedied (with interest
as set forth in Section 3.04(b)) by 11:00 a.m. (New York City time) on the
relevant Distribution Date; or
(ii) any failure by the Special Servicer to deposit into the REO
Account, or to remit to the Servicer for deposit into, the Certificate
Account or the Serviced Whole Loan Custodial Account, or to remit to the
Trustee for deposit into the Lower-Tier Distribution Account any amount
required to be so deposited or remitted by the Special Servicer pursuant
to, and at the time specified by, the terms of this Agreement; provided,
however, that the failure of the Special Servicer to remit such amount to
the Servicer shall not be an Event of Default if such failure is remedied
within one Business Day and if the Special Servicer has compensated the
Servicer for any loss of income on such amount suffered by the Servicer
due to and caused by the late remittance of the Special Servicer and
reimbursed the Trust for any resulting advance interest due to the
Servicer; or
(iii) any failure on the part of the Servicer or the Special
Servicer duly to observe or perform in any material respect any of its
other covenants or obligations contained in this Agreement (other than a
failure to deliver the items described in subsection (xii) below with
regards to a fiscal year in which the Trust is subject to Exchange Act
reporting requirements) which continues unremedied for a period of 30 days
(15 days in the case of a failure of the Servicer to make a Servicing
Advance, or a failure to pay the premium for any insurance policy required
to be maintained hereunder, or such shorter period as may be necessary to
avoid the foreclosure of any lien for delinquent real estate taxes or a
lapse of insurance coverage required hereunder) after the date on which
written notice of such failure, requiring the same to be remedied, shall
have been given to the Servicer or the Special Servicer, as the case may
be, by any other party hereto, with a copy to each other party to this
Agreement by any affected holder of any Serviced Companion Loan or the
Holders of Certificates of any Class evidencing, as to such Class,
Percentage Interests aggregating not less than 25%; provided, however, if
such failure is capable of being cured and the Servicer or Special
Servicer, as applicable, is diligently pursuing such cure, such 15-, 30-
or 45-day period will be extended an additional 30 days; or
(iv) any breach on the part of the Servicer or the Special Servicer
of any representation or warranty contained in Section 3.23 or Section
3.24, as applicable, which materially and adversely affects the interests
of any Class of Certificateholders or any affected holder of any Serviced
Companion Loan and which 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 Servicer or the Special Servicer,
as the case may be, by the Depositor or the Trustee, or to the Servicer,
the Special Servicer, the Depositor and the Trustee by any affected holder
of any Serviced Companion Loan or the Holders of Certificates of any Class
evidencing, as to such Class, Percentage Interests aggregating not less
than 25%; provided, however, if such breach is capable of being cured and
the Servicer or Special Servicer, as applicable, is diligently pursuing
such cure, such 30-day period will be extended an additional 30 days; or
(v) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Servicer or the Special Servicer and such decree or order shall have
remained in force undischarged, undismissed or unstayed for a period of 60
days; or
(vi) the Servicer or the Special Servicer shall consent to the
appointment of a conservator, receiver, liquidator, trustee or similar
official in any bankruptcy, insolvency, readjustment of debt, marshaling
of assets and liabilities or similar proceedings of or relating to the
Servicer or the Special Servicer or of or relating to all or substantially
all of its property; or
(vii) the Servicer or the Special Servicer shall admit in writing
its inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable bankruptcy, insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, voluntarily suspend payment of its obligations or take any
corporate action in furtherance of the foregoing; or
(viii) the Servicer or the Special Servicer is no longer listed on
S&P's Select Servicer List as a U.S. Commercial Mortgage Servicer or a
U.S. Commercial Mortgage Special Servicer, as the case may be, and either
(a) not reinstated to such status on such list within 60 days of removal
or (b) any of the ratings assigned to the Certificates or to any
securities backed in whole or in part by a Serviced Companion Loan are
qualified, downgraded, or withdrawn as a result of such removal, whichever
is earlier; or
(ix) the Servicer or the Special Servicer, as the case may be,
obtains actual knowledge that ▇▇▇▇▇'▇ has (1) qualified, downgraded or
withdrawn its rating or ratings of any class of Serviced Companion Loan
Securities, or (2) placed any class of Serviced Companion Loan Securities
on "watchlist" status in contemplation of a rating downgrade or withdrawal
(and such "watchlist" status placement shall not have been withdrawn by
▇▇▇▇▇'▇ within 60 days of the date when the Servicer or Special Servicer,
as the case may be, obtained such actual knowledge) and, in the case of
either clause (1) or (2), cited servicing concerns with the Servicer or
the Special Servicer, as the case may be, as the sole or a material factor
in such rating action; or
(x) subject to Sections 11.16(c) and 11.16(e), the Servicer, the
Special Servicer, or any Servicing Function Participant appointed by the
Servicer or Special Servicer (other than Bank of America, National
Association under the Bank of America Sub-Servicing Agreement and other
than any Loan Seller Sub-Servicer), shall fail to deliver any Exchange Act
reporting items required to be delivered by such servicer under Article XI
of this Agreement at the time required under such Article, and after
giving effect to all applicable grace periods and cure periods set forth
therein.
(b) If any Event of Default with respect to a 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 such Event of Default shall not have been remedied, the
Depositor may notify the Trustee and the Trustee may (and shall at the written
direction of the Depositor with respect to clause (x) above), upon such notice
or independent of such notice, and at the written direction of the Holders of
Certificates entitled to at least 51% of the Voting Rights (without giving
effect to the Defaulting Party's (or its Affiliates') Voting Rights) the Trustee
shall, terminate by notice in writing to the Defaulting Party, with a copy of
such notice to the Trustee or Depositor, as applicable, all of the rights
(subject to Section 3.11(b) and other than rights to indemnification hereunder)
and obligations of the Defaulting Party under this Agreement and in and to the
Mortgage Loans and the proceeds thereof (solely in its capacity as Servicer or
Special Servicer, as applicable); provided, however, that the Defaulting Party
shall be entitled to the payment of accrued and unpaid compensation,
indemnification and reimbursement through the date of such termination as
provided for under this Agreement for services rendered and expenses incurred;
provided, further, that the Servicer may not be terminated solely for an Event
of Default that affects only a holder of a Serviced Pari Passu Loan or any class
of Serviced Companion Loan Securities or a Serviced B Note or any class of
securities backed thereby. 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 as the holder of a Serviced Companion Loan) or the Mortgage
Loans or Serviced Whole Loans or otherwise, shall, subject to Section 3.22(h)
and Section 7.01(e), pass to and be vested in the Trustee with respect to a
termination of the Servicer or Special Servicer 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 Mortgage Loans and related
documents, or otherwise. The Servicer and 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 20 Business Days subsequent to its receipt of the notice of
termination) provide the Trustee with all documents and records requested by it
to enable it to assume the Servicer's or the Special Servicer's, as the case may
be, functions hereunder, and shall cooperate with the Trustee in effecting the
termination of the Servicer's or the Special Servicer's, as the case may be,
responsibilities and rights hereunder, including, without limitation, the
transfer within five Business Days to the Trustee for administration by it of
all cash amounts which shall at the time be or should have been credited by the
Servicer to the Certificate Account, any Serviced Whole Loan Custodial Account
or any Servicing Account (if it is the Defaulting Party) or by the Special
Servicer to any REO Account (if it is the Defaulting Party) or thereafter be
received with respect to the Mortgage Loans or any REO Property (provided,
however, that the Servicer and the Special Servicer each shall, if terminated
pursuant to this Section 7.01(b), continue to be entitled to receive all amounts
accrued or owing to it under this Agreement on or prior to the date of such
termination, whether in respect of Advances (in the case of the Servicer) or
otherwise including Workout Fees as and to the extent provided in Section 3.11,
and they and their Affiliates and their respective directors, managers,
officers, shareholders, members, employees and agents shall continue to be
entitled to the benefits of Section 6.03 notwithstanding any such termination).
Notwithstanding this Section 7.01(b), if an Event of Default has
occurred with respect to a Servicer that (1) affects the holder of a Serviced
Companion Loan or any class of Serviced Companion Loan Securities, and the
applicable Servicer is not otherwise terminated under this Section 7.01(b) or
(2) affects solely a holder of a Serviced Companion Loan or any class of
Serviced Companion Loan Securities, then such Servicer may not be terminated by
the Trustee; provided, however, in the case of (1) or (2), at the request of the
holder of such Serviced Companion Loan or the related trustee of an Other
Securitization acting at the direction of the related "controlling class
representative" or analogous party, the Trustee shall require the applicable
Servicer to appoint within 30 days of the Trustee's request a sub-servicer
solely with respect to the Serviced Whole Loan if such Serviced Whole Loan is
not then being sub-serviced (or if the Mortgage Loan is currently being
sub-serviced and such sub-servicer is in default under the related Sub-Servicing
Agreement, to replace the current sub-servicer within 30 days of the Trustee's
request); provided, (1) the sub-servicer shall be selected by the holders (or
their designees) of the Serviced Whole Loan then holding a majority of the
outstanding principal balance of the Serviced Whole Loan, (2) such appointment
(or replacement) shall be subject to receipt of a written confirmation from each
Rating Agency then rating any Certificates or Serviced Companion Loan Securities
that such action would not cause such Rating Agency to qualify, withdraw or
downgrade any of its then-current ratings on the such Certificate or Serviced
Companion Loan Securities, and (3) the terms of any sub-servicing agreement
between the Servicer and such Sub-Servicer must be reasonably acceptable to the
Servicer. With respect to the ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Whole Loan, a replacement
sub-servicer will be selected by the ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Directing Holder.
(c) Subject to Section 7.02(b) and the rights of the holders of the
Serviced Companion Loans pursuant to the related Co-Lender Agreement, the
Directing Certificateholder, or the Holder or Holders of more than 50% of the
aggregate Certificate Balance of the then Controlling Class shall be entitled to
terminate the rights and obligations of the Special Servicer under this
Agreement, with or without cause, upon 10 Business Days notice to the Special
Servicer, the Servicer and the Trustee, and to appoint a successor Special
Servicer; provided, however, that (i) such successor will meet the requirements
set forth in Section 7.02 and (ii) as evidenced in writing by each of the Rating
Agencies, the proposed successor of such 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 then
outstanding Certificates or any class of Serviced Companion Loan Securities that
is rated. No penalty or fee shall be payable to the Special Servicer with
respect to any termination pursuant to this Section 7.01(c). The Directing
Certificateholder, or the applicable holders of the Serviced Companion Loans, as
applicable, shall cause the Special Servicer to be reimbursed for the payment of
any outstanding costs and expenses incurred by the Special Servicer in its
capacity as such and in connection with its removal hereunder, which costs and
expenses shall not be an expense of the Trust Fund.
(d) The Servicer and Special Servicer shall, from time to time, take
all such reasonable actions in accordance with the Servicing Standard as are
required by them in order to maintain their respective status as an approved
servicer and special servicer, as applicable as pertains to this transaction,
with each of the Rating Agencies.
(e) In the case of an Event of Default under Section 7.01(a)(viii),
(ix), (x) or (xi) of which the Trustee has notice, the Trustee shall provide
written notice thereof to the Servicer promptly upon receipt of such notice.
Notwithstanding Section 7.01(b), if the Servicer receives a notice of
termination under Section 7.01(b) solely due to an Event of Default under
Section 7.01(a)(viii), (ix), (x) or (xi), and if the Servicer provides the
Trustee with the appropriate "request for proposal" materials within five (5)
Business Days following such termination, then the Servicer shall continue to
serve in such capacity hereunder until a successor thereto is selected in
accordance with this Section 7.01(e) or the expiration of 45 days from the
Servicer's receipt of the notice of termination, whichever occurs first. Upon
receipt of such "request for proposal" materials from the terminated Servicer,
the Trustee shall promptly thereafter (using such "request for proposal"
materials) solicit good faith bids for the rights to master service the Mortgage
Loans under this Agreement from at least three (3) Persons qualified to act as a
successor Servicer hereunder in accordance with Section 6.02 and Section 7.02
(any such Person so qualified, a "Qualified Bidder") or, if three (3) 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 Servicer shall supply the Trustee with the names of Persons from whom
to solicit such bids; and provided, further, that the Trustee shall not be
responsible if less than three (3) or no Qualified Bidders submit bids for the
right to master service the Mortgage Loans under this Agreement. The bid
proposal shall require any Successful Bidder (as defined below), as a condition
of such bid, to enter into this Agreement as successor Servicer, and to agree to
be bound by the terms hereof, within 45 days after the receipt of notice of
termination by the terminated Servicer. Subject in all cases to Section 3.22,
the Trustee shall solicit bids: (i) on the basis of such successor Servicer
retaining all Sub-Servicers to continue the primary servicing of the Mortgage
Loans pursuant to the terms of the respective Sub-Servicing Agreements and to
enter into a Sub-Servicing Agreement with the terminated Servicer to sub-service
each of the Mortgage Loans not subject to a Sub-Servicing Agreement at a
sub-servicing fee rate per annum equal to the related Master Servicing Fee Rate
minus 1.0 basis point (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 Servicer hereunder.
The Trustee shall direct the Successful Bidder to enter into this Agreement as
successor 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 Servicer as contemplated above) no later than 45 days after the
receipt of notice of termination by the terminated Servicer; provided, however,
that the initial Servicer may request and obtain an additional 20 days for such
sale and assumption to be completed so long as the initial Servicer delivers to
the Trustee an Officer's Certificate stating that the sale and assumption of the
right to service the Mortgage Loans cannot be completed in the initial 45-day
period and specifying the reasons therefor.
The proceeds of the sale, net of any reasonable expenses incurred by
the Trustee in connection with such sale (which expenses shall be paid from the
proceeds of such sale), will belong to the terminated Servicer. In the event
that such sale shall not have been consummated, the terminated Servicer shall
reimburse the Trustee for all out-of-pocket expenses incurred by the Trustee in
connection therewith, within 30 days of request therefor, otherwise such
expenses shall be payable from the Trust. If no such sale shall have been
consummated within such 45-day period or if the terminated Servicer shall not
have delivered a timely notice of its intention to sell such servicing rights,
the Trustee shall take any additional action necessary to either act as
successor Servicer or select a successor Servicer of its choice pursuant to the
terms hereof.
Notwithstanding anything to the contrary in this Article VII, no
resignation or termination of the Servicer shall be effective, and the Servicer
shall continue to perform as such and to collect its Servicing Fee until the
conclusion of the process described in this Section 7.01(e) and the acceptance
of appointment by a successor Servicer.
Section 7.02 Trustee to Act; Appointment of Successor.
Subject to Section 7.01(e), on and after the time the Servicer or
the Special Servicer, as the case may be, either resigns pursuant to subsection
(a) of the first sentence of Section 6.04 or receives a notice of termination
for cause pursuant to Section 7.01(a), and provided that no acceptable successor
has been appointed, the Trustee shall be the successor to the Servicer and the
Servicer shall be the successor to the Special Servicer, as applicable, in all
respects in its capacity as Servicer or Special Servicer under this Agreement
and the transactions set forth or provided for herein and shall be subject to,
and have the benefit of, all of the rights, benefits, responsibilities, duties,
liabilities and limitations on liability relating thereto and that arise
thereafter placed on or for the benefit of the Servicer or Special Servicer by
the terms and provisions hereof; provided, however, that any failure to perform
such duties or responsibilities caused by the terminated party's failure under
Section 7.01 to provide information or moneys required hereunder shall not be
considered a default by such successor hereunder. Except as provided in Section
7.01(e), the Trustee shall not appoint any successor without first obtaining the
written consent of the Directing Certificateholder, which shall not be
unreasonably withheld, and the Trustee shall not appoint any successor without
first obtaining written confirmation from each of the Rating Agencies that such
appointment 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 of any Class of then outstanding Certificates or any class of Serviced
Companion Loan Securities that is rated. The appointment of a successor Servicer
shall not affect any liability of the predecessor Servicer which may have arisen
prior to its termination as Servicer, and the appointment of a successor Special
Servicer shall not affect any liability of the predecessor Special Servicer
which may have arisen prior to its termination as Special Servicer. The Trustee
or Servicer, as applicable, in its capacity as successor to the Servicer or the
Special Servicer, as the case may be, shall not be liable for any of the
representations and warranties of the Servicer or the Special Servicer,
respectively, herein or in any related document or agreement, for any acts or
omissions of the predecessor Servicer or Special Servicer or for any losses
incurred by the Servicer pursuant to Section 3.06 hereunder, nor shall the
Trustee or the Servicer, as applicable, be required to purchase any Mortgage
Loan hereunder solely as a result of its obligations as successor Servicer or
Special Servicer, as the case may be. As compensation therefor, the Trustee as
successor Servicer shall be entitled to the Servicing Fees and all fees relating
to the Mortgage Loans which the Servicer would have been entitled to if the
Servicer had continued to act hereunder, including but not limited to any income
or other benefit from any Permitted Investment pursuant to Section 3.06, and the
Servicer as successor to the Special Servicer shall be entitled to the Special
Servicing Fees to which the Special Servicer would have been entitled if the
Special Servicer had continued to act hereunder. Should the Trustee or the
Servicer, as applicable, succeed to the capacity of the Servicer or the Special
Servicer, as the case may be, the Trustee or the Servicer, as applicable, shall
be afforded the same standard of care and liability as the Servicer or the
Special Servicer, as applicable, hereunder notwithstanding anything in Section
8.01 to the contrary, but only with respect to actions taken by it in its role
as successor Servicer or successor Special Servicer, as the case may be, and not
with respect to its role as Trustee or Servicer, as applicable, hereunder.
Notwithstanding the above, the Trustee or the Servicer, as applicable, may, if
it shall be unwilling to act as successor to the Servicer or Special Servicer,
as the case may be, or shall, if it is unable to so act, or if the Trustee or
Servicer, as applicable, is not approved as a servicer or special servicer, as
applicable, by each Rating Agency or if the Holders of Certificates entitled to
at least 51% of the Voting Rights so request in writing to the Trustee, promptly
appoint, or petition a court of competent jurisdiction to appoint, any
established mortgage loan servicing institution which meets the criteria set
forth in Section 6.04 and otherwise herein, as the successor to the Servicer or
the Special Servicer, as applicable, hereunder in the assumption of all or any
part of the responsibilities, duties or liabilities of the Servicer or Special
Servicer hereunder. No appointment of a successor to the Servicer or the Special
Servicer hereunder shall be effective until the assumption in writing by the
successor to the Servicer or the Special Servicer of all its responsibilities,
duties and liabilities hereunder that arise thereafter. Pending appointment of a
successor to the Servicer or the Special Servicer hereunder, unless the Trustee
or the Servicer, as applicable, shall be prohibited by law from so acting, the
Trustee or the Servicer, as applicable, shall act in such capacity as herein
above provided. In connection with such appointment and assumption of a
successor to the Servicer or Special Servicer as described herein, the Trustee
or the Servicer, as applicable, may make such arrangements for the compensation
of such successor out of payments on Mortgage Loans as it and such successor
shall agree; provided, however, that no such compensation with respect to a
successor Servicer or successor Special Servicer, as the case may be, shall be
in excess of that permitted the terminated Servicer or Special Servicer, as the
case may be, hereunder. The Trustee, the Servicer or the Special Servicer
(whichever is not the terminated party) and such successor 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
servicing function (other than with respect to a termination without cause)
under this Agreement shall be borne by the predecessor servicer and shall be
paid within 30 days of request therefor, otherwise such costs and expenses shall
be payable from the Trust.
Section 7.03 Notification to Certificateholders.
(a) Upon any resignation of the Servicer or the Special Servicer
pursuant to Section 6.04, any termination of the Servicer or the Special
Servicer pursuant to Section 7.01 or any appointment of a successor to the
Servicer or the Special Servicer pursuant to Section 7.02, the Trustee shall
give prompt written notice thereof to Certificateholders at their respective
addresses appearing in the Certificate Register and to the holder of any related
Serviced Companion Loan.
(b) Not later than the later of (i) 60 days after the occurrence of
any event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) five days after the Trustee would be
deemed to have notice of the occurrence of such an event in accordance with
Section 8.02(vii), the Trustee shall transmit by mail to the Depositor, all
Certificateholders and the holders of any related Serviced Companion Loan,
notice of such occurrence, unless such default shall have been cured.
Section 7.04 Waiver of Events of Default.
The Holders of Certificates representing at least 66(2)/3% of the
Voting Rights (without giving effect to the Defaulting Party's (or its
Affiliates') Voting Rights) allocated to each Class of Certificates affected by
any Event of Default hereunder may waive such Event of Default within 20 days of
the receipt of notice from the Trustee of the occurrence of such Event of
Default; provided, however, that an Event of Default under clause (i) of Section
7.01(a) may be waived only by all of the Certificateholders of the affected
Classes; provided, further, however, that an Event of Default arising from the
failure to deliver the items required by Sections 11.08, 11.11, 11.12 and 11.13
may not be waived. 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. Upon any such waiver of an Event of Default by
Certificateholders, the Trustee shall be entitled to recover all costs and
expenses incurred by it in connection with enforcement action taken with respect
to such Event of Default prior to such waiver from the Trust Fund. 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 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 unless the Depositor is an Affiliate
of the defaulting party.
Section 7.05 Trustee as Maker of Advances.
In the event that the Servicer fails to fulfill its obligations
hereunder to make any Advances and such failure remains uncured, the Trustee
shall perform such obligations (x) within five Business Days of the Event of
Default resulting from such failure by the Servicer with respect to Servicing
Advances to the extent a Responsible Officer of the Trustee has actual knowledge
of such failure with respect to such Servicing Advances and (y) by noon, New
York City time, on the related Distribution Date with respect to P&I Advances
pursuant to the Trustee's notice of failure pursuant to Section 4.03(a) unless
the Trustee has received notice that such failure has been cured by 11:00 a.m.
on such Distribution Date. With respect to any such Advance made by the Trustee,
the Trustee shall succeed to all of the Servicer's rights with respect to
Advances hereunder, including, without limitation, the Servicer's rights of
reimbursement and interest on each Advance at the Reimbursement Rate, and rights
to determine that a proposed Advance is a Nonrecoverable P&I Advance or
Servicing Advance, as the case may be, (without regard to any impairment of any
such rights of reimbursement caused by such Servicer's default in its
obligations hereunder); provided, however, that if Advances made by the Trustee
or the Servicer shall at any time be outstanding, or any interest on any Advance
shall be accrued and unpaid, all amounts available to repay such Advances and
the interest thereon hereunder shall be applied entirely to the Advances
outstanding to the Trustee, until such Advances shall have been repaid in full,
together with all interest accrued thereon, prior to reimbursement of the
Servicer for such Advances. The Trustee shall be entitled to conclusively rely
on any notice given with respect to a Nonrecoverable Advance or any
determination of nonrecoverability in connection therewith by the Servicer
hereunder. In addition, any determination made by the Special Servicer, at its
option, that an Advance is a Nonrecoverable Advance shall be conclusive and
binding on the Servicer and the Trustee, provided that the Servicer or the
Trustee, as applicable, has been given notice of such determination.
[End of Article VII]
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiving of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, 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. Any permissive right of the Trustee contained in this Agreement
shall not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which 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 to the requirements of this Agreement. If any
such instrument is found not to conform to the requirements of this Agreement in
a material manner, the Trustee shall notify the party providing such instrument
and requesting the correction thereof. The Trustee shall not be responsible for
the accuracy or content of any resolution, certificate, statement, opinion,
report, document, order or other instrument furnished by the Depositor, the
Servicer or the Special Servicer or another Person (other than the Trustee), and
accepted by the Trustee in good faith, pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct or bad faith; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing of all such Events of Default which may have occurred, the duties
and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee and, in the absence of bad faith
on the part of the Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement;
(ii) The Trustee shall not be liable for an error of judgment made
in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(iii) The protections, immunities and indemnities afforded to the
Trustee hereunder shall also be available to it in its capacity as
Authenticating Agent, Certificate Registrar and Custodian. The Trustee
shall not be 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% of the Voting Rights
relating to the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Agreement (unless a higher
percentage of Voting Rights is required for such action).
(iv) Subject to and as limited in the other provisions of this
Agreement, the Trustee shall have no duty except in the capacity as
successor Servicer or successor Special Servicer (A) to see to any
recording, filing or depositing of this Agreement or any agreement
referred to herein or any financing statement or continuation statement
evidencing a security interest, or to see to the maintenance of any such
recording or filing or depositing or to any re-recording, refiling or
redepositing of any thereof, (B) to see to any insurance, and (C) to
confirm or verify the contents of any reports or certificates of the
Servicer or Special Servicer delivered to the Trustee pursuant to this
Agreement reasonably believed by the Trustee to be genuine and to have
been signed or presented by the proper party or parties.
Section 8.02 Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 8.01:
(i) The Trustee may rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, Appraisal, bond or other
paper or document reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(ii) The Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance therewith;
(iii) The Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or to institute, conduct or
defend any litigation hereunder or in relation hereto at the request,
order or direction of any of the Certificateholders, pursuant to the
provisions of this Agreement, unless such Certificateholders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby; the
Trustee shall be under no obligation to take any action to enforce the
rights of the Trust Fund under the related Swap Contract unless it is
assured, in its sole discretion, that the costs and expenses of such
action(s) will be reimbursed by the applicable Swap Counterparty or the
Holders of the Class A-MFL Certificates or Class A-JFL Certificates, as
applicable, or another party acceptable to the Trustee; the Trustee shall
not be required to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or
in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it;
nothing contained herein shall, however, relieve the Trustee of the
obligation, upon the occurrence of an Event of Default which 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;
(iv) The Trustee shall not be 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;
(v) Prior to the occurrence of an Event of Default hereunder and
after the curing of all Events of Default which may have occurred, the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other
paper or document, unless requested in writing to do so by Holders of
Certificates entitled to at least 50% of the Voting Rights; provided,
however, that if the payment within a reasonable time to the Trustee of
the costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the
terms of this Agreement, the Trustee may require reasonable indemnity from
such requesting Holders against such expense or liability as a condition
to taking any such action. The reasonable expense of every such reasonable
examination shall be paid by the Servicer or, if paid by the Trustee,
shall be repaid by the Servicer upon demand;
(vi) The Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys; provided, however, that the appointment of such agents or
attorneys shall not relieve the Trustee of its duties or obligations
hereunder; provided, further, however, that the Trustee may not perform
any duties hereunder through any Person that is a Prohibited Party;
(vii) For all purposes under this Agreement, including, without
limitation, notice of any publication as contemplated under the proviso of
Section 7.01(a)(viii) and (ix), the Trustee shall not be deemed to have
notice of any Event of Default unless a Responsible Officer of the Trustee
has actual knowledge thereof or unless written notice of any event which
is in fact such a default is received by the Trustee at the Corporate
Trust Office, and such notice references the Certificates or this
Agreement; and
(viii) Notwithstanding any provision in this Agreement to the
contrary, the Trustee shall not be responsible for any act or omission of
the Servicer or the Special Servicer (unless the Trustee is acting as
Servicer or Special Servicer, as the case may be), Certificate Registrar
or Authenticating Agent (unless the Trustee is acting as Certificate
Registrar or Authenticating Agent) or of the Depositor or Directing
Certificateholder.
(b) The Trustee shall not be required to give any bond or surety in
respect of the execution of the Trust Fund created hereby or the power granted
hereunder.
Section 8.03 Trustee Not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates, other than
the acknowledgments of the Trustee in Sections 2.02 and 2.04 and the signature,
if any, of the Certificate Registrar set forth on any outstanding Certificate,
shall be taken as the statements of the Depositor, the Servicer or the Special
Servicer, as the case may be, and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Agreement or of any Certificate (other than as to the
signature, if any, of the Trustee set forth thereon) or of any Mortgage Loan or
related document. The Trustee shall not be accountable for the use or
application by the Depositor of any of the Certificates issued to it or of the
proceeds of such Certificates, or for the use or application of any funds paid
to the Depositor in respect of the assignment of the Mortgage Loans to the Trust
Fund, or any funds deposited in or withdrawn from the Certificate Account, any
Serviced Whole Loan Custodial Account or any other account by or on behalf of
the Depositor, the Servicer or the Special Servicer. The Trustee shall not be
responsible for the accuracy or content of any resolution, certificate,
statement, opinion, report, document, order or other instrument furnished by the
Depositor, the Servicer or the Special Servicer and accepted by the Trustee in
good faith, pursuant to this Agreement.
Section 8.04 Trustee May Own Certificates.
The Trustee its individual capacity, not as Trustee, may become the
owner or pledgee of Certificates, and may deal with the Depositor, the Servicer,
the Special Servicer, the Initial Purchasers and the Underwriters in banking
transactions, with the same rights it would have if it were not Trustee.
Section 8.05 Fees and Expenses of Trustee; Indemnification of
Trustee.
(a) As compensation for the performance of its duties, the Trustee
will be paid the Trustee Fee, equal to one month's interest at the Trustee Fee
Rate. The Trustee Fee shall be paid monthly on a Mortgage Loan-by-Mortgage Loan
basis. As to each Mortgage Loan and REO Loan, the Trustee Fee shall accrue from
time to time at the Trustee Fee Rate and shall be computed on the basis of the
Stated Principal Balance of such Mortgage Loan and a 360-day year consisting of
twelve 30-day months. The Trustee Fee (which shall not be limited to any
provision of law in regard to the compensation of a trustee of an express trust)
shall constitute the Trustee's sole form of compensation for all services
rendered by it in the execution of the trusts hereby created and in the exercise
and performance of any of the powers and duties of the Trustee hereunder.
(b) The Trustee (whether in its individual capacity or its capacity
as Trustee) and any shareholder, director, officer, employee or agent of the
Trustee shall be entitled to be indemnified and held harmless by the Trust Fund
(to the extent of amounts on deposit in the Certificate Account, Lower-Tier
Distribution Account or Component Mortgage Loan Distribution Account from time
to time) against any loss, liability or reasonable out of pocket expenses
(including costs and expenses incurred in connection with removal of the Special
Servicer and Servicer pursuant to Sections 7.01 and 7.02) or expense (including,
without limitation, costs and expenses of litigation, and of investigation,
counsel fees, damages, judgments and amounts paid in settlement, and expenses
incurred in becoming successor servicer or successor Special Servicer, to the
extent not otherwise paid hereunder) arising out of, or incurred in connection
with, any act or omission of the Trustee, relating to the exercise and
performance of any of the powers and duties of the Trustee hereunder, or arising
out of, or incurred in connection with, any act or omission of the Certificate
Registrar or Authenticating Agent (to the extent different than the Trustee),
relating to the exercise and performance of any of the powers and duties of the
Certificate Registrar or Authenticating Agent hereunder; provided, however, that
neither the Trustee, nor any of the other above specified Persons 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 in the normal course of the Trustee's performance of its duties in
accordance with any of the provisions hereof, which are not "unanticipated
expenses of the REMIC" within the meaning of Treasury Regulations Section
1.860G-1(b)(3)(ii), (iii) any expense or liability specifically required to be
borne thereby pursuant to the terms hereof or (iv) any loss, liability or
expense incurred by reason of willful misfeasance, bad faith or negligence in
the performance of the Trustee's obligations and duties hereunder, or by reason
of negligent disregard of such obligations or duties, or as may arise from a
breach of any representation, warranty or covenant of the Trustee made herein.
The provisions of this Section 8.05(b) shall survive the termination of this
Agreement and any resignation or removal of the Trustee and appointment of a
successor thereto.
(c) The Trustee shall be paid or reimbursed by the Trust Fund upon
its request for all reasonable expenses and disbursements incurred by the
Trustee pursuant to and in accordance with any of the provisions of this
Agreement (including the reasonable compensation and the expenses and
disbursements of its counsel and of all persons not regularly in its employ) to
the extent such payments are "unanticipated expenses incurred by the REMIC"
within the meaning of Treasury Regulations Section 1.860G-1(b)(iii) except any
such expense, disbursement or advance as may arise from its bad faith or willful
misconduct or negligence in the performance of its duties or by negligent
disregard of its obligations and duties hereunder; provided, however, that
subject to Section 8.02(a)(iii), the Trustee shall not refuse to perform any of
its duties hereunder solely as a result of the failure to be paid the Trustee
Fee or the Trustee's expenses.
(d) The Trustee agrees to indemnify each of the Servicer and the
Special Servicer and any shareholder, director, officer, member, manager,
employee or agent thereof, and hold them harmless, from and against any and all
claims, losses, damages, penalties, fines, forfeitures, reasonable legal fees
and related costs, judgments, and any other costs, liabilities, fees and
expenses that any of them may sustain arising from or as a result of any willful
misfeasance, bad faith or negligence of the Trustee in the performance of its
obligations and duties under this Agreement or by reason of negligent disregard
by the Trustee of its duties and obligations hereunder or by reason of breach of
any representations or warranties made herein; provided, that such indemnity
shall not cover indirect or consequential damages. The Servicer or the Special
Servicer, as applicable, shall immediately notify the Trustee, if a claim is
made by a third party with respect to this Agreement or the Mortgage Loans
entitling it to indemnification under this Section 8.05(d), whereupon the
Trustee shall assume the defense of such claim (with counsel reasonably
satisfactory to the Servicer or the Special Servicer) and pay all expenses in
connection therewith, including counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or them in
respect of such claim. Any failure to so notify the Trustee shall not affect any
rights any of the foregoing Persons may have to indemnification under this
Agreement or otherwise, unless the Trustee's defense of such claim is materially
prejudiced thereby.
Section 8.06 Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be, and will be required to
resign if it fails to be, (i) a corporation, national bank, national banking
association or a trust company, organized and doing business under the laws of
any state or the United States of America, authorized under such laws to
exercise corporate trust powers and to accept the trust conferred under this
Agreement, having a combined capital and surplus of at least $100,000,000 and
subject to supervision or examination by federal or state authority and shall
not be an Affiliate of the Servicer or the Special Servicer (except during any
period when the Trustee is acting as, or has become successor to, the Servicer
or the Special Servicer, as the case may be, pursuant to Section 7.02), (ii) an
institution insured by the Federal Deposit Insurance Corporation and (iii) an
institution whose long-term senior unsecured debt is rated "AA-" by S&P (or "A+"
by S&P, if the Trustee's short-term unsecured debt rating is at least "A-1" from
S&P) and "Aa3" by ▇▇▇▇▇'▇ (or "A1" by ▇▇▇▇▇'▇ if the Trustee has a short-term
rating of "[ ]" from ▇▇▇▇▇'▇) (or such entity as would not, as evidenced in
writing by such Rating Agency, result in the qualification, downgrading or
withdrawal of any of the ratings then assigned thereby to the Certificates or
any Serviced Companion Loan Securities). Additionally, the Trustee hereunder
will be required to resign if it becomes a Prohibited Party.
If such corporation, national bank or national 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 the combined capital and surplus of such corporation,
national bank or national banking association shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In the event the place of business from which the Trustee administers
the Upper-Tier REMIC and the Lower-Tier REMIC or in which the Trustee's office
is located is in a state or local jurisdiction that imposes a tax on the Trust
Fund on the net income of a REMIC (other than a tax corresponding to a tax
imposed under the REMIC Provisions), the Trustee shall elect either to (i)
resign immediately in the manner and with the effect specified in Section 8.07,
(ii) pay such tax at no expense to the Trust or (iii) administer the Upper-Tier
REMIC and the Lower-Tier REMIC from a state and local jurisdiction that does not
impose such a tax.
Section 8.07 Resignation and Removal of the Trustee.
(a) The Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Depositor, the
Servicer, the Special Servicer, each Swap Counterparty, all Certificateholders
and the holders of the Serviced Companion Loans. Upon receiving such notice of
resignation, the Depositor shall promptly appoint a successor Trustee acceptable
to the Servicer by written instrument, in duplicate, which instrument shall be
delivered to the resigning Trustee and to the successor Trustee. A copy of such
instrument shall be delivered to the Servicer, the Special Servicer, each Swap
Counterparty, the Certificateholders and the holders of any related Serviced
Companion Loan by the Depositor. If no successor Trustee shall have been so
appointed and have accepted appointment within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
written request therefor by the Depositor or the Servicer, or if at any time the
Trustee shall become incapable of acting, or shall be adjudged bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be appointed,
or any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, or if the Trustee shall fail (other than by reason of the failure
of either the Servicer or the Special Servicer to timely perform its obligations
hereunder or as a result of other circumstances beyond the Trustee's reasonable
control), to timely publish any report to be delivered, published or otherwise
made available by the Trustee pursuant to Section 4.02 and such failure shall
continue unremedied for a period of five days, or if the Trustee fails to make
distributions required pursuant to Section 3.05(b), 3.05(c), 4.01 or 9.01, or if
the Trustee fails to perform (or acts with negligence, bad faith or willful
misconduct in performing) any of its obligations set forth in Article XI, then
the Depositor may remove the Trustee and appoint a successor Trustee acceptable
to the Servicer by written instrument, in duplicate, which instrument shall be
delivered to the Trustee so removed and to the successor Trustee in the case of
the removal of the Trustee. A copy of such instrument shall be delivered to the
Servicer, the Special Servicer, the Certificateholders and the holders of any
related Serviced Companion Loan by the Depositor.
(c) The Holders of Certificates entitled to at least 51% of the
Voting Rights may at any time remove the Trustee and appoint a successor Trustee
by written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which instruments
shall be delivered to Servicer No. 1, one complete set to the Trustee so removed
and one complete set to the successor so appointed. A copy of such instrument
shall be delivered to the Depositor, the Special Servicer, the remaining
Certificateholders and the holders of any Serviced Companion Loan by such
successor Trustee.
(d) Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until acceptance of appointment by the successor Trustee as
provided in Section 8.08.
Upon any succession of the Trustee under this Agreement, the
predecessor Trustee shall be entitled to the payment of accrued and unpaid
compensation and reimbursement as provided for under this Agreement for services
rendered and expenses incurred (including without limitation, unreimbursed
Advances). No Trustee shall be personally liable for any action or omission of
any successor Trustee.
Section 8.08 Successor Trustee.
(a) Any successor Trustee appointed as provided in Section 8.07
shall execute, acknowledge and deliver to the Depositor, the Servicer, the
Special Servicer and to its predecessor Trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee shall become effective and such successor Trustee without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with the
like effect as if originally named as Trustee herein. The predecessor Trustee
shall deliver to the successor Trustee all Mortgage Files and related documents
and statements held by it hereunder (other than any Mortgage Files at the time
held on its behalf by a Custodian, which Custodian, at the Custodian's option,
shall become the agent of the successor Trustee, and other than the documents
referred to in clause (xix) of the definition of "Mortgage File"), and the
Depositor, the Servicer, the Special Servicer and the predecessor Trustee shall
execute and deliver such instruments and do such other things as may reasonably
be required to more fully and certainly vest and confirm in the successor
Trustee all such rights, powers, duties and obligations, and to enable the
successor Trustee to perform its obligations hereunder.
(b) No successor Trustee shall accept appointment as provided in
this Section 8.08 unless at the time of such acceptance such successor Trustee
shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor Trustee as
provided in this Section 8.08, the Servicer shall mail notice of the succession
of such Trustee hereunder to the Depositor, the Certificateholders and the
holders of any Serviced Companion Loan. If the Servicer fails to mail such
notice within 10 days after acceptance of appointment by the successor Trustee,
such successor Trustee shall cause such notice to be mailed at the expense of
the Servicer.
(d) Any and all costs and expenses associated with transferring the
duties of a Trustee that has resigned or been removed or terminated, as
contemplated by Section 8.07, to a successor Trustee, including those associated
with transfer of the Mortgage Files and other documents and statements held by
the predecessor Trustee to the successor Trustee, as contemplated by Section
8.08(a), shall be paid by: (i) the predecessor Trustee, if such predecessor
Trustee has resigned in accordance with Section 8.07(a), has been removed in
accordance with Section 8.07(b) or has been removed with cause in accordance
with Section 8.07(c); (ii) the Certificateholders that effected the removal, if
the predecessor Trustee has been removed without cause in accordance with
Section 8.07(c); and (iii) the Trust, if such costs and expenses are not paid by
the predecessor Trustee or the subject Certificateholders, as contemplated by
the immediately preceding clauses (i) and (ii), within 90 days after they are
incurred (provided that such predecessor Trustee or such subject
Certificateholders, as applicable, shall remain liable to the Trust for such
costs and expenses).
Section 8.09 Merger or Consolidation of Trustee.
Any Person into which the Trustee may be merged or converted or with
which it may be consolidated or any Person resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any Person succeeding
to all or substantially all of the corporate trust business of the Trustee shall
be the successor of the Trustee hereunder; provided, that such successor Person
shall be eligible under the provisions of Section 8.06, 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. The Trustee will provide notice
of such event to the Servicer, the Special Servicer, the Depositor and the
Rating Agencies.
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 Trustee 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 Trustee may consider necessary or desirable. 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 hereof.
(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 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 Servicer or the Special Servicer 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 and responsibilities
hereunder. The Trustee shall not be liable for any action or inaction of a
separate trustee or co-trustee.
(f) Notwithstanding anything herein to the contrary, the Trustee
shall not hire any separate trustee or co-trustee which would or might be
required to deliver any of the reports, assessments or attestations required
under Items 1122 or 1123 of Regulation AB or back-up ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Certification pursuant to Section 11.08 or any information to be included in any
Exchange Act report without obtaining the prior written consent of the
Depositor, which consent shall not be unreasonably withheld.
Section 8.11 Appointment of Custodians.
The Trustee may, with the consent of the Servicer, appoint one or
more Custodians to hold all or a portion of the Mortgage Files as agent for the
Trustee and upon such appointment the Trustee shall notify (i) the Servicer with
respect to all Mortgage Loans that are not Specially Serviced Mortgage Loans and
(ii) the Special Servicer with respect to Specially Serviced Mortgage Loans.
Each Custodian shall be a depository institution subject to supervision by
federal or state authority, shall have combined capital and surplus of at least
$15,000,000 and shall be qualified to do business in the jurisdiction in which
it holds any Mortgage File and shall not be the Depositor or any Affiliate of
the Depositor. 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 obligations
hereunder, and the Trustee shall remain responsible for all acts and omissions
of any Custodian. Any Custodian appointed hereunder must maintain a fidelity
bond and errors and omissions policy in an amount customary for Custodians which
serve in such capacity in commercial mortgage loan securitization transactions.
Section 8.12 Access to Certain Information.
(a) On or prior to the date of the first sale of any Non-Registered
Certificate to an Independent third party, the Depositor shall provide to the
Trustee three 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
relates. In addition, if any such private placement memorandum or disclosure
document is revised, amended or supplemented at any time following the delivery
thereof to the Trustee, the Depositor promptly shall inform the Trustee of such
event and shall deliver to the Trustee a copy of the private placement
memorandum or disclosure document, as revised, amended or supplemented. The
Trustee shall maintain at its offices primarily responsible for administering
the Trust Fund (or, with respect to item (j) below, at its office located at
▇▇▇▇▇ Fargo Center, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Corporate Trust Services (CMBS) (GE Commercial Mortgage
Corporation, Commercial Mortgage Pass-Through Certificates, Series 2007-C1) and
shall, upon reasonable advance notice, make available during normal business
hours for review by any Holder of a Certificate, the Depositor, the Servicer,
the Special Servicer, any Rating Agency, the holders of any Companion Loan and
their designees or any other Person to whom the Trustee believes such disclosure
is appropriate, originals or copies of the following items (to the extent such
items have been delivered to the Trustee, as applicable): (i) in the case of a
Holder or prospective transferee of a Non-Registered Certificate, any private
placement memorandum or other disclosure document relating to the Class of
Certificates to which such Non-Registered Certificate belongs, in the form most
recently provided to the Trustee and (ii) in all cases, including the holders of
a related Serviced Companion Loan, (a) this Agreement and any amendments hereto
entered into pursuant to Section 12.01, (b) all statements required to be
delivered to Certificateholders of the relevant Class pursuant to Section 4.02
since the Closing Date, including all data files and reports that are part of
the CMSA Investor Reporting Package, (c) all Officer's Certificates delivered to
the Trustee since the Closing Date pursuant to Section 11.11 and Section 11.12,
(d) all accountants' reports delivered to the Trustee since the Closing Date
pursuant to Section 11.13, (e) the most recent inspection report prepared by the
Servicer, Sub-Servicer or Special Servicer, as applicable, and delivered to the
Trustee in respect of each Mortgaged Property pursuant to Section 3.12(a), (f)
as to each Mortgage Loan pursuant to which the related Mortgagor is required to
deliver such items or the Special Servicer has otherwise acquired such items,
the most recent annual operating statement and rent roll of the related
Mortgaged Property and financial statements of the related Mortgagor and any
other reports of the Mortgagor collected by the Servicer, Sub-Servicer or
Special Servicer, as applicable, and delivered to the Trustee pursuant to
Section 3.12(b), together with the accompanying written reports (including a
CMSA Operating Statement Analysis Report and a CMSA NOI Adjustment Worksheet) to
be delivered by the Servicer to the Trustee pursuant to Section 3.12(b), (g) any
and all notices, reports and Environmental Assessments delivered to the Trustee
with respect to any Mortgaged Property securing a Defaulted Mortgage 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 (but only for so long as such Mortgaged Property or
the related Mortgage Loan are part of the Trust Fund), (h) any and all
modifications, waivers and amendments of the terms of a Mortgage Loan entered
into by the Servicer or the Special Servicer and delivered to the Trustee
pursuant to Section 3.20 (but only for so long as the affected Mortgage Loan is
part of the Trust Fund), (i) any and all Officer's Certificates delivered to the
Trustee to support the Servicer's determination that any P&I Advance or
Servicing Advance was or, if made, would be a Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance, as the case may be, (j) any and all of the
Mortgage Loan documents contained in the Mortgage File (other than the documents
referred to in clause (xix) of the definition of "Mortgage File"), (k) any and
all Appraisals obtained pursuant to the definition of "Appraisal Reduction"
herein, (l) information provided to the Trustee regarding the occurrence of
Servicing Transfer Events as to the Mortgage Loans, (m) any and all
Sub-Servicing Agreements and any amendments thereto and modifications thereof
provided to the Trustee, (n) Trustee Exception Reports and (o) an explanation of
the calculation of any Prepayment Interest Shortfall. Copies of any and all of
the foregoing items will be available from the Trustee upon request; provided,
however, that the Trustee shall be permitted to require payment of a sum
sufficient to cover the reasonable costs and expenses of providing such copies,
except in the case of copies provided to the Rating Agencies, which shall be
free of charge. In addition, without limiting the generality of the foregoing,
any 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 T Certificateholder may upon
request from the Trustee obtain a copy of any factual report (other than the
Asset Status Report) delivered to the Rating Agencies under this Agreement.
(b) Notwithstanding anything to the contrary herein, in addition to
the reports and information made available and distributed pursuant to the terms
of this Agreement (including the information set forth in Section 8.12(a)), the
Trustee shall, in accordance with such reasonable rules and procedures as each
may adopt (which may include the requirement that an agreement that provides
that such information shall be used solely for purposes of evaluating the
investment characteristics of the Certificates be executed), also provide the
reports available to Certificateholders pursuant to Section 4.02, as well as
certain additional information received by the Trustee, to any
Certificateholder, the Underwriters, the Initial Purchasers, any Certificate
Owner or any prospective investor identified as such by a Certificate Owner or
Underwriter, that requests such reports or information; provided that the
Trustee shall be permitted to require payment of a sum sufficient to cover the
reasonable costs and expenses of providing copies of such reports or
information.
(c) With respect to any information furnished by the Trustee
pursuant to this Section 8.12, the Trustee shall be entitled to indicate the
source of such information and the Trustee may affix thereto any disclaimer it
deems appropriate in its discretion. The Trustee shall notify Certificateholders
of the availability of any such information in any manner as it, in its sole
discretion, may determine. In connection with providing access to or copies of
the items described in the preceding paragraph, the Trustee may require (a) in
the case of Certificate Owners, a confirmation executed by the requesting Person
substantially in form and substance reasonably acceptable to the Trustee, as
applicable, generally to the effect that such Person is a beneficial holder of
Certificates, is requesting the information solely for use in evaluating such
Person's investment in the Certificates and will otherwise keep such information
confidential and (b) in the case of a prospective purchaser, confirmation
executed by the requesting Person in form and substance reasonably acceptable to
the Trustee, generally to the effect that such Person is a prospective purchaser
of a Certificate or an interest therein, is requesting the information solely
for use in evaluating a possible investment in Certificates and will otherwise
keep such information confidential. The Trustee shall not be liable for the
dissemination of information in accordance with this Agreement.
Section 8.13 Reserved.
Section 8.14 Representations and Warranties of the Trustee.
(a) The Trustee hereby represents and warrants to the Depositor, the
Servicer and the Special Servicer and for the benefit of the Certificateholders
and the holders of any Serviced Companion Loan, as of the Closing Date, that:
(i) The Trustee is a national banking association duly organized
under the laws of the United States, duly organized, validly existing and
in good standing under the laws thereof;
(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, will not violate the Trustee's organizational documents or
constitute a default (or an event which, 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 which is
applicable to it or any of its assets;
(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 the rights of creditors of
national banking associations specifically 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 will 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 which 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; and
(vii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Trustee, or compliance by the Trustee with, this
Agreement or the consummation of the transactions contemplated by this
Agreement, except for any consent, approval, authorization or order which
has not been obtained or cannot be obtained prior to the actual
performance by the Trustee of its obligations under this Agreement, and
which, if not obtained would not have a materially adverse effect on the
ability of the Trustee to perform its obligations hereunder.
[End of Article VIII]
ARTICLE IX
TERMINATION
Section 9.01 Termination Upon Repurchase or Liquidation of All
Mortgage Loans.
(a) Subject to Section 9.02, the Trust Fund and the respective
obligations and responsibilities under this Agreement of the Depositor, the
Servicer, the Special Servicer and the Trustee (other than the obligations of
the Trustee to provide for and make payments to Certificateholders as hereafter
set forth) shall terminate upon payment (or provision for payment) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required hereunder to be so paid on the Distribution Date following the earlier
to occur of (i) the purchase by the Special Servicer, the Directing
Certificateholder or the Servicer, pursuant to the terms of subsection (b), of
all the Mortgage Loans and each REO Property remaining in the Trust Fund at a
price equal to (A) the sum of (1) the aggregate Purchase Price of all the
Mortgage Loans (exclusive of REO Loans) included in the Trust Fund, (2) the
Appraised Value of each REO Property (or beneficial interest in the Mortgaged
Property under a Non-Serviced Mortgage Loan), if any, included in the Trust Fund
(such Appraisals in clause (a)(2) to be conducted by an Independent
MAI-designated appraiser selected by the Servicer, and approved by more than 50%
of the Voting Rights of the Classes of Certificates then outstanding (other than
the Controlling Class, unless the Controlling Class is the only Class of
Certificates outstanding)) and (3) the reasonable out-of-pocket expenses of the
Servicer with respect to such termination, unless the Servicer is the purchaser
of such Mortgage Loans, minus (B) solely in the case where the Servicer or the
Special Servicer is effecting such purchase, the aggregate amount of
unreimbursed Advances, together with any interest accrued and payable to the
Servicer or the Special Servicer, as applicable, in respect of such Advances in
accordance with Sections 3.03(e) and 4.03(d) and any unpaid Servicing Fees or
Special Servicing Fees, Liquidation Fees and Workout Fees, as applicable,
remaining outstanding (which items shall be deemed to have been paid or
reimbursed to the Servicer or Special Servicer in connection with such
purchase), (ii) the exchange by the Sole Certificateholder of the Certificates
pursuant to the terms of subsection (d) and (iii) the final payment or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan or
REO Property (or beneficial interest in the Mortgaged Property under a
Non-Serviced Mortgage Loan) remaining in the Trust Fund; provided, however, that
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 ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, the late ambassador of the United States to the Court of St. ▇▇▇▇▇,
living on the date hereof.
(b) The Special Servicer, the Directing Certificateholder or the
Servicer (in that order) may at their option, elect to purchase all of the
Mortgage Loans and each REO Property (or beneficial interest in the Mortgaged
Property under a Non-Serviced Mortgage Loan) remaining in the Trust Fund as
contemplated by clause (i) of the preceding paragraph by giving written notice
to the Trustee and the other parties hereto no later than 60 days prior to the
anticipated date of purchase; provided, however, that the Special Servicer, the
Directing Certificateholder or the Servicer may so elect to purchase all of the
Mortgage Loans and each REO Property (or beneficial interest in the Mortgaged
Property under the Non-Serviced Mortgage Loan) remaining in the Trust Fund only
on or after the first Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Loans set forth in the Preliminary Statement. In the event that the Special
Servicer, the Directing Certificateholder or the Servicer purchases all of the
Mortgage Loans and each REO Property (or beneficial interest in the Mortgaged
Property under a Non-Serviced Mortgage Loan) remaining in the Trust Fund in
accordance with the preceding sentence, the Special Servicer, the Directing
Certificateholder or the Servicer, as applicable, shall deposit in the
Certificate Account not later than the P&I Advance 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 in the Certificate Account) (provided, however, that if the REO
Property secures a Serviced Whole Loan and is being purchased pursuant to the
foregoing, the Trust Fund's portion of the above-described purchase price
allocable to such REO Property shall initially be deposited into the related REO
Account). In addition, the Servicer shall transfer to the Trustee for deposit
into the Lower-Tier Distribution Account all amounts required to be transferred
thereto on such P&I Advance Date from the Certificate Account pursuant to the
first paragraph of Section 3.04(b), together with any other amounts on deposit
in the Certificate Account that would otherwise be held for future distribution.
Upon confirmation that such final deposits have been made, the Trustee shall
release or cause to be released to the Special Servicer, the Directing
Certificateholder or the Servicer, as applicable, the Mortgage Files for the
remaining Mortgage Loans and shall execute all assignments, endorsements and
other instruments furnished to it by the Special Servicer, the Directing
Certificateholder or the Servicer, as applicable, as shall be necessary to
effectuate transfer of the Mortgage Loans and REO Properties (or beneficial
interest in the Mortgaged Property under a Non-Serviced Mortgage Loan) remaining
in the Trust Fund. If any Mortgage Loan purchased pursuant to this Section 9.01
relates to a Whole Loan, the release, endorsement or assignment of the documents
constituting the related Mortgage File and Credit File shall be in the manner
contemplated by Section 3.30 hereof.
(c) For purposes of this Section 9.01, the Sole Certificateholder
shall have the first option to terminate the Trust Fund, pursuant to subsection
(d), and then the Special Servicer, and then the Directing Certificateholder and
then the Servicer, in each of the last three cases, pursuant to subsection (b).
(d) Following the date on which the aggregate Certificate Balance of
the Offered Certificates, Class A-MFL, Class A-JFL, Class E, Class F, Class G,
Class H, Class J and Class K Certificates is reduced to zero (and provided that
the aggregate Stated Principal Balances of the Mortgage Loans and any REO Loans
remaining in the Trust Fund is less than 1% of the aggregate Cut-off Date
Principal Balance of the Mortgage Loans set forth in the Preliminary Statement),
the Sole Certificateholder shall have the right to exchange all of its
Certificates (other than the Residual Certificates) for all of the Mortgage
Loans and each REO Property (or beneficial interest in the Mortgaged Property
under a Non-Serviced Mortgage Loan) remaining in the Trust Fund as contemplated
by clause (ii) of Section 9.01(a) by giving written notice to all the parties
hereto no later than 60 days prior to the anticipated date of exchange. In the
event that the Sole Certificateholder elects to exchange all of its Certificates
(other than the Residual Certificates) for all of the Mortgage Loans and each
REO Property (or beneficial interest in the Mortgaged Property under a
Non-Serviced Mortgage Loan) remaining in the Trust in accordance with the
preceding sentence, such Sole 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 Servicer, the Special
Servicer and the Trustee hereunder through the date of the liquidation of the
Trust Fund that may be withdrawn from the Certificate Account or a Serviced
Whole Loan Custodial 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(a), but only to the extent that
such amounts are not already on deposit in the Certificate Account. In addition,
the Servicer shall transfer all amounts required to be transferred to the
Lower-Tier Distribution Account on such P&I Advance Date from the Certificate
Account pursuant to the first paragraph of Section 3.04(b) (provided, however,
that if the REO Property secures a Serviced Whole Loan and is being purchased
pursuant to the foregoing, the portion of the above-described purchase price
allocable to such REO Property shall initially be deposited into the related
Serviced Whole Loan Custodial Account. Upon confirmation that such final
deposits have been made and following the surrender of all its Certificates
(other than the Residual Certificates) on the Final Distribution Date, the
Trustee shall, upon receipt of a Request for Release from the Servicer, release
or cause to be released to the Sole 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
Certificateholder as shall be necessary to effectuate transfer of the Mortgage
Loans and REO Properties (or beneficial interest in the Mortgaged Property under
a Non-Serviced Mortgage Loan) remaining in the Trust Fund, and the Trust Fund
shall be liquidated in accordance with Section 9.02. If any Mortgage Loan
purchased pursuant to this Section 9.01 is a Whole Loan, the release,
endorsement or assignment of the documents constituting the related Mortgage
File and Credit File shall be in the manner contemplated by Section 3.30 hereof.
The remaining Mortgage Loans and REO Properties are deemed distributed to the
Sole Certificateholder in liquidation of the Trust Fund pursuant to Section
9.02. Solely for federal income tax purposes, the Sole Certificateholder shall
be deemed to have purchased the remaining Mortgage Loans and REO Properties (or
beneficial interest in the Mortgaged Property under a Non-Serviced Mortgage
Loan) for an amount equal to the remaining Certificate Balance of its
Certificates (other than the Residual Certificates), plus accrued, unpaid
interest with respect thereto, and the Trustee shall credit such amount against
amounts distributable in respect of such Certificates and the Related
Uncertificated Lower-Tier Interests.
(e) Notice of any termination pursuant to this Section 9.01 shall be
given promptly by the Trustee by letter to each Swap Counterparty, the
Certificateholders, the holder of the Serviced Companion Loans and each Rating
Agency and, if not previously notified pursuant to this Section 9.01, to the
other parties hereto mailed (i) in the event such notice is given in connection
with the purchase of all of the Mortgage Loans and each REO Property (or
beneficial interest in the Mortgaged Property under a Non-Serviced Mortgage
Loan) remaining in the Trust Fund, not earlier than the 15th day and not later
than the 25th day of the month next preceding the month of the final
distribution on the Certificates, or (ii) otherwise during the month of such
final distribution on or before the P&I Advance Determination Date in such
month, in each case specifying (A) the Distribution Date upon which the Trust
Fund will terminate and final payment of the Certificates will be made, (B) the
amount of any such final payment and (C) 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.
(f) After transferring the Lower-Tier Distribution Amount and the
amount of any Yield Maintenance Charges distributable pursuant to Section
4.01(d) to the Upper-Tier Distribution Account pursuant to Section 3.04(b), and
upon presentation and surrender of the Certificates by the Certificateholders on
the final Distribution Date, the Trustee shall distribute to each
Certificateholder so presenting and surrendering its Certificates such
Certificateholder's Percentage Interest of that portion of the amounts then on
deposit in the Upper-Tier Distribution Account (or, in the case of the Class
A-MFL or Class A-JFL Certificates, amounts then on deposit in the related
Floating Rate Account after payment of the Class A-MFL Net Swap Payment or Class
A-JFL Net Swap Payment to the applicable Swap Counterparty, as specified in
Section 3.05(g), that are allocable to payments on the Class of Certificates so
presented and surrendered. Amounts transferred from the Lower-Tier Distribution
Account to the Upper-Tier Distribution Account as of the final Distribution Date
(exclusive of any portion of such amounts payable or reimbursable to any Person
pursuant to clauses (ii), (iii) and (iv) of Section 3.05(b)) shall be allocated
for the purposes, in the amounts and in accordance with the priority set forth
in Sections 4.01(a), 4.01(m) and 4.01(n) and shall be distributed in termination
and liquidation of the Uncertificated Lower-Tier Interests and the Class LR
Certificates in accordance with Sections 4.01(b). Any funds not distributed on
such Distribution Date shall be set aside and held uninvested in trust for the
benefit of the Certificateholders not presenting and surrendering their
Certificates in the aforesaid manner and shall be disposed of in accordance with
this Section 9.01 and Section 4.01(g).
Any amounts remaining in the Excess Liquidation Proceeds Reserve
Account shall be distributed to the Holders of the Class LR Certificates.
Section 9.02 Additional Termination Requirements.
In the event that (i) the Special Servicer, the Directing
Certificateholder of the Servicer purchases all of the Mortgage Loans and each
REO Property (or beneficial interest in the REO Property under a Non-Serviced
Mortgage Loan) remaining in the Trust Fund or (ii) the Sole Certificateholder
exchanges all of its Certificates (other than the Residual Certificates) for all
of the Mortgage Loans and REO Properties (or beneficial interest in the REO
Property under a Non-Serviced Mortgage Loan) remaining in the Trust Fund as
provided in Section 9.01, the Trust Fund shall be terminated in accordance with
the following additional requirements, which meet the definition of a "qualified
liquidation" in Section 860F(a)(4) of the Code:
(i) the Trustee shall specify the date of adoption of the plan of
complete liquidation (which shall be the date of mailing of the notice
specified in Section 9.01) within 90 days of the final Distribution Date
in a statement attached to each of the Upper-Tier REMIC's and the
Lower-Tier REMIC's final Tax Return pursuant to Treasury Regulations
Section 1.860F-1;
(ii) during the 90-day liquidation period and at or prior to the
time of the making of the final payment on the Certificates, the Trustee
shall sell all of the assets of the Lower-Tier REMIC to the Servicer or
the Special Servicer, as applicable, for cash or distribute all of the
remaining Mortgage Loans and REO Properties to the Sole Certificateholder
on the designated exchange date in exchange for their Certificates (other
than the Residual Certificates);
(iii) within such 90-day liquidation period and immediately
following the making of the final distribution on the Uncertificated
Lower-Tier Interests and the Certificates, the Trustee shall distribute or
credit, or cause to be distributed or credited, to the Holders of the
Class LR Certificates all amounts remaining (in the case of the Lower-Tier
REMIC) and to the Holders of the Class R Certificates all amounts
remaining (in the case of the Upper-Tier REMIC) (other than cash retained
to meet claims), and the Trust Fund and each of the Lower-Tier REMIC and
the Upper-Tier REMIC shall terminate at that time.
In the event the Trust Fund is to be terminated while the Class
A-MFL Swap Contract is still in effect, the Trustee shall promptly notify the
Class A-MFL Swap Counterparty in writing of the date on which the Trust Fund is
to be terminated and the notional amount of the Class A-MFL Swap Contract will
be reduced to zero on such date. Based on the date of termination, the Trustee
shall calculate the Class A-MFL Net Swap Payment, if any, as specified in
Section 3.32, and prior to any final distribution to the Holders of the Class
A-MFL Certificates pursuant to Section 9.01, shall pay such Class A-MFL Net Swap
Payment if any, to the Class A-MFL Swap Counterparty. In the event that any fees
(including termination fees) will be payable to the Class A-MFL Swap
Counterparty in connection with such termination, such fees will be payable to
the Class A-MFL Swap Counterparty solely from amounts remaining in the
applicable Class A-MFL Floating Rate Account after all distributions, to the
Class A-MFL Certificates are made pursuant to Section 9.01.
In the event the Trust Fund is to be terminated while the Class
A-JFL Swap Contract is still in effect, the Trustee shall promptly notify the
Class A-JFL Swap Counterparty in writing of the date on which the Trust Fund is
to be terminated and the notional amount of the Class A-JFL Swap Contract will
be reduced to zero on such date. Based on the date of termination, the Trustee
shall calculate the Class A-JFL Net Swap Payment, if any, as specified in
Section 3.32, and prior to any final distribution to the Holders of the Class
A-JFL Certificates pursuant to Section 9.01, shall pay such Class A-JFL Net Swap
Payment if any, to the Class A-JFL Swap Counterparty. In the event that any fees
(including termination fees) will be payable to the Class A-JFL Swap
Counterparty in connection with such termination, such fees will be payable to
the Class A-JFL Swap Counterparty solely from amounts remaining in the
applicable Class A-JFL Floating Rate Account after all distributions, to the
Class A-JFL Certificates are made pursuant to Section 9.01
[End of Article IX]
ARTICLE X
ADDITIONAL REMIC PROVISIONS
Section 10.01 REMIC Administration.
(a) The Trustee shall make elections or cause elections to be made
to treat each of the Lower-Tier REMIC and the Upper-Tier REMIC as a REMIC under
the Code and, if necessary, under Applicable State and Local Tax Law. Each such
election will be made on Form 1066 or other appropriate federal tax return for
the taxable year ending on the last day of the calendar year in which the
Uncertificated Lower-Tier Interests and the Certificates are issued (i.e.,
2007). For the purposes of the REMIC election in respect of the Upper-Tier
REMIC, each Class of the Regular Certificates (other than the Class A-MFL and
Class A-JFL Certificates) and the Class A-MFL Regular Interest and the Class
A-JFL Regular Interest is hereby designated as a class of "regular interests,"
and the Class R Certificates is hereby designated as the sole class of "residual
interest" in the Upper-Tier REMIC. For purposes of the REMIC election in respect
of the Lower-Tier REMIC, each Class of Uncertificated Lower-Tier Interests is
hereby designated as a "regular interest" and the Class LR Certificates are
hereby designated as representing the sole class of "residual interest" in the
Lower-Tier REMIC.
None of the Special Servicer, the Servicer and the Trustee shall
permit the creation of any "interests" (within the meaning of Section 860G of
the Code) in the Lower-Tier REMIC or the Upper-Tier REMIC other than the
foregoing interests.
(b) The Closing Date is hereby designated as the "startup day" of
each of the Lower-Tier REMIC and the Upper-Tier REMIC, within the meaning of
Section 860G(a)(9) of the Code.
(c) The Trustee, as agent of the "tax matters person" of each of the
Upper-Tier REMIC and the Lower-Tier REMIC described below, shall act on behalf
of each such REMIC in relation to any tax matter or controversy involving any
such REMIC and shall represent each REMIC in any administrative or judicial
proceeding relating to an examination or audit by any governmental taxing
authority with respect thereto. The legal expenses, including without limitation
attorneys' or accountants' fees, and costs of any such proceeding and any
liability resulting therefrom shall be expenses of the Trust Fund and the
Trustee shall be entitled to reimbursement therefor out of amounts attributable
to the Mortgage Loans and any REO Properties on deposit in the Certificate
Account as provided by Section 3.05(a) unless such legal expenses and costs are
incurred by reason of the Trustee's willful misfeasance, bad faith or gross
negligence. The Holder of the largest Percentage Interest in each of (i) the
Class R and (ii) the Class LR Certificates shall be designated, in the manner
provided under Treasury Regulations Section 1.860F-4(d) and temporary Treasury
Regulations Section 301.6231(a)(7)-1T, as the "tax matters person" of the
Upper-Tier REMIC and the Lower-Tier REMIC, respectively. By their acceptance
thereof, the Holders of the largest Percentage Interest in each of the Class R
and Class LR Certificates hereby agrees to irrevocably appoint the Trustee as
their agent to perform all of the duties of the "tax matters person" for the
Upper-Tier REMIC (as to the Class R Certificates) and the Lower-Tier REMIC (as
to the Class LR Certificates).
(d) The Trustee shall prepare or cause to be prepared, sign and
shall file, or cause to be filed, all of the Tax Returns that it determines are
required with respect to the Lower-Tier REMIC and the Upper-Tier REMIC created
hereunder. The ordinary expenses of preparing such returns shall be borne by the
Trustee without any right of reimbursement therefor.
(e) The Trustee shall provide or cause to be provided (i) to any
Transferor of a Class R Certificate or Class LR Certificate such information as
is necessary for the application of any tax relating to the transfer of such
Class R Certificate or Class LR Certificate to any Person who is a Disqualified
Organization, or in the case of a Transfer to an Agent thereof, to such Agent,
(ii) to the Certificateholders such information or reports as are required by
the Code or the REMIC Provisions including reports relating to interest,
original issue discount and market discount or premium (using the Prepayment
Assumption) and (iii) within 30 days after the Closing Date, to the Internal
Revenue Service (A) on Internal Revenue Service Form SS-4 in order to receive a
taxpayer identification number for each of the Lower-Tier REMIC and the
Upper-Tier REMIC and (B) on Form 8811 the name, title, address and telephone
number of the "tax matters person" who will serve as the representative of the
Lower-Tier REMIC, in the case of the Class LR Certificates, and the Upper-Tier
REMIC, in the case of the Class R Certificates.
(f) The Trustee shall take such actions and shall cause the Trust
Fund to take such actions as are reasonably within the Trustee's control and the
scope of its duties more specifically set forth herein as shall be necessary to
maintain the status of each of the Lower-Tier REMIC and the Upper-Tier REMIC as
a REMIC under the REMIC Provisions. Neither the Servicer nor the Special
Servicer shall knowingly or intentionally take any action, cause the Trust Fund
to take any action or fail to take (or fail to cause to be taken) any action
reasonably within its control and the scope of duties more specifically set
forth herein, that, under the REMIC Provisions, if taken or not taken, as the
case may be, could (i) endanger the status of the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC or (ii) result in the imposition of a tax upon the
Lower-Tier REMIC or the Upper-Tier REMIC or the Trust Fund (including but not
limited to the tax on "prohibited transactions" as defined in Section 860F(a)(2)
of the Code and the tax on contributions to a REMIC set forth in Section 860G(d)
of the Code, but not including the tax on "net income from foreclosure
property") (either such event, an "Adverse REMIC Event") unless the Trustee
receives an Opinion of Counsel (at the expense of the party seeking to take such
action or, if such party fails to pay such expense, and the Trustee determines
that taking such action is in the best interest of the Trust Fund and the
Certificateholders, at the expense of the Trust Fund, but in no event at the
expense of the Trustee) to the effect that the contemplated action will not,
with respect to the Trust Fund, the Lower-Tier REMIC or the Upper-Tier REMIC
created hereunder, endanger such status or, unless the Trustee determines in its
sole discretion to indemnify the Trust Fund against such tax, result in the
imposition of such a tax (not including a tax on "net income from foreclosure
property"). The Trustee shall not take or fail to take any action (whether or
not authorized hereunder) as to which it has received an Opinion of Counsel to
the effect that an Adverse REMIC Event could occur with respect to such action
and the Trustee shall not take any such action or cause any of the Trust Fund,
the Lower-Tier REMIC or the Upper-Tier REMIC to take any such action as to which
the it has advised an Adverse REMIC Event could occur. The Trustee may consult
with counsel to make such written advice, and the cost of same shall be borne by
the party seeking to take the action not expressly permitted by this Agreement,
but in no event at the expense of the Trustee. At all times as may be required
by the Code, the Trustee will, to the extent within its control, and the scope
of its duties more specifically set forth herein, maintain substantially all of
the assets of each of the Lower-Tier REMIC and the Upper-Tier REMIC as
"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.
(g) In the event that any applicable federal, state or local tax,
including interest, penalties or assessments, additional amounts or additions to
tax, is imposed on either the Lower-Tier REMIC or the Upper-Tier REMIC, such tax
shall be charged against amounts otherwise distributable to the Holders of the
Certificates, except as provided in the last sentence of this Section 10.01(g);
provided, that with respect to the estimated amount of tax imposed on any "net
income from foreclosure property" pursuant to Code Section 860G(c) or any
similar tax imposed by a state or local tax authority, the Special Servicer
shall retain in the related REO Account a reserve for the payment of such taxes
in such amounts and at such times as it shall deem appropriate, and shall remit
to the Trustee such reserved amounts. Except as provided in the preceding
sentence, the Servicer shall withdraw from the Certificate Account and remit to
the Trustee sufficient funds to pay or provide for the payment of, and to
actually pay, such tax as is estimated to be legally owed by any of the
Lower-Tier REMIC or the Upper-Tier REMIC (but such authorization shall not
prevent the Trustee from contesting, at the expense of the Trust Fund (other
than as a consequence of a breach of its obligations under this Agreement), any
such tax in appropriate proceedings, and withholding payment of such tax, if
permitted by law, pending the outcome of such proceedings). The Trustee is
hereby authorized to and shall request the Servicer to remit to it and shall
segregate, into a separate non-interest bearing account, the net income from any
"prohibited transaction" under Code Section 860F(a) or the amount of any taxable
contribution to either the Lower-Tier REMIC or the Upper-Tier REMIC after the
Startup Day that is subject to tax under Code Section 860G(d) and use such
income or amount, to the extent necessary, to pay such prohibited transactions
tax. To the extent that any such tax (other than any such tax paid in respect of
"net income from foreclosure property") is paid to the Internal Revenue Service
or applicable state or local tax authorities, the Trustee shall retain an equal
amount from future amounts otherwise distributable to the Holders of Residual
Certificates (as applicable) and shall distribute such retained amounts, in the
case of the Lower-Tier REMIC, to the Trustee on behalf of the Upper-Tier REMIC
as Holder of the Uncertificated Lower-Tier Interests to the extent they are
fully reimbursed for any Collateral Support Deficit arising therefrom and then,
in each case, to the Holders of the Class LR Certificates in the manner
specified in Section 4.01(b) and (z) distribute such retained amounts, in the
case of the Upper-Tier REMIC, to the Holders of Class A-1, Class ▇-▇, ▇▇▇▇▇ ▇-▇,
Class A-AB, Class A-4, Class A-1A, Class A-M, Class A-J, Class B, Class C, Class
D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class
N, Class O, Class P, Class Q, Class T, Class X-C and Class X-P Certificates and
the Class A-MFL Regular Interest and the Class A-JFL Regular Interest, as
applicable, in the manner specified in Section 4.01(a), to the extent they are
fully reimbursed for any Collateral Support Deficit arising therefrom and then
to the Holders of the Class R Certificates. None of the Trustee, the Servicer or
the Special Servicer shall be responsible for any taxes imposed on the
Lower-Tier REMIC or the Upper-Tier REMIC except to the extent such taxes arise
as a consequence of a breach (which breach constitutes negligence or willful
misconduct) of their respective obligations under this Agreement.
(h) The Trustee shall, for federal income tax purposes, maintain
books and records with respect to each of the Lower-Tier REMIC and the
Upper-Tier REMIC on a calendar year and on an accrual basis sufficient to
prepare the Tax Returns of the Lower-Tier REMIC and the Upper-Tier REMIC and to
perform the tax information reporting or as otherwise may be required by the
REMIC Provisions. In order to enable the Trustee to perform its duties as set
forth herein, the Depositor shall cause the Underwriters to provide the Trustee
within 10 days after the Closing Date, all information or data that the Trustee
reasonably determines to be relevant for tax purposes on the valuations and
offering prices of the Certificates, including, without limitation, the yield,
prepayment assumption, issue prices and projected cash flows of the Certificates
and the projected cash flows of the Mortgage Loans. Thereafter, the Underwriters
shall provide the Trustee, promptly upon request therefor, any such additional
information or data that the Trustee may, from time to time, reasonably request
in order to enable the Trustee to perform its duties as set forth herein. The
Trustee is hereby directed to use any and all such information or data provided
by the Underwriters or such Persons in the preparation of all federal and state
income or franchise tax and information returns and reports for each of the
Lower-Tier REMIC and the Upper-Tier REMIC and to Certificateholders as required
herein. The Trustee agrees that all such information or data so obtained by it
is to be regarded as confidential information and agrees that it shall use its
best reasonable efforts to retain in confidence, and shall ensure that its
officers, employees and representatives retain in confidence, and shall not
disclose, without the prior written consent of the Depositor and the
Underwriters, any or all of such information or data, or make any use whatsoever
(other than for the purposes contemplated by this Agreement) of any such
information or data without the prior written consent of the Depositor and the
Underwriters, unless such information is generally available to the public
(other than as a result of a breach of this Section 10.01(h)) or is required by
law or applicable regulations to be disclosed or is disclosed to Independent
auditors, accountants and counsel of the Trustee and its parent company.
(i) Following the Closing Date, none of the Trustee, the Servicer or
the Special Servicer shall accept any contributions of assets to the Lower-Tier
REMIC or the Upper-Tier REMIC unless the Trustee shall have received an Opinion
of Counsel (at the expense of the party seeking to make such contribution) to
the effect that the inclusion of such assets in the Lower-Tier REMIC or the
Upper-Tier REMIC will not (i) cause any of the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC at any time that the
Uncertificated Lower-Tier Interests or Certificates are outstanding or (ii)
subject any of the Trust Fund, the Lower-Tier REMIC or the Upper-Tier REMIC to
any tax under the REMIC Provisions or other applicable provisions of federal,
state and local law or ordinances.
(j) None of the Trustee, the Servicer or the Special Servicer shall
enter into any arrangement by which any of the Trust Fund, the Lower-Tier REMIC
or the Upper-Tier REMIC will receive a fee or other compensation for services
nor permit the Lower-Tier REMIC or the Upper-Tier REMIC 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.
(k) Solely for the purposes of Section 1.860G-1(a)(4)(iii) of the
Treasury Regulations, the "latest possible maturity date" by which the
Certificate Balance or Notional Amount of each Class of Regular Certificates
(other than the Class A-MFL and Class A-JFL Certificates) and the Class A-MFL
Regular Interest and the Class A-JFL Regular Interest and the Lower-Tier
Principal Amount of each Class of Uncertificated Lower-Tier Interests would be
reduced to zero is the Rated Final Distribution Date.
(l) None of the Trustee, the Servicer or the Special Servicer, as
applicable, shall sell, dispose of or substitute for any of the Mortgage Loans
(except in connection with (i) the default, imminent default or foreclosure of a
Mortgage Loan, including but not limited to, the acquisition or sale of a
Mortgaged Property acquired by foreclosure or deed in lieu of foreclosure, (ii)
the bankruptcy of the Trust Fund, (iii) the termination of the Trust Fund
pursuant to Article IX of this Agreement or (iv) a purchase of Mortgage Loans
pursuant to Article II or III of this Agreement) or acquire any assets for the
Trust Fund or the Lower-Tier REMIC or the Upper-Tier REMIC or sell or dispose of
any investments in the Certificate Account or the REO Account for gain unless it
has received an Opinion of Counsel that such sale, disposition or substitution
will not (a) affect adversely the status of the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC or (b) unless the Servicer or the Special Servicer,
as applicable, has determined in its sole discretion to indemnify the Trust Fund
against such tax, cause the Lower-Tier REMIC or the Upper-Tier REMIC to be
subject to a tax on "prohibited transactions" pursuant to the REMIC Provisions.
Section 10.02 Depositor, Servicer and Special Servicer to Cooperate
with Trustee.
(a) The Depositor shall provide or cause to be provided to the
Trustee, within 10 days after the Closing Date, all information or data that the
Trustee 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 Servicer and the Special Servicer shall each furnish such
reports, certifications and information, and upon reasonable notice and during
normal business hours, 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 Rating Agencies and Trustee in order to enable it to perform
its duties hereunder.
Section 10.03 Use of Agents.
The Trustee shall execute all of its obligations and duties under
this Article X through its Corporate Trust Office. The Trustee may execute any
of its obligations and duties under this Article X either directly or by or
through agents or attorneys. The Trustee shall not be relieved of any of its
duties or obligations under this Article X by virtue of the appointment of any
such agents or attorneys.
[End of Article X]
ARTICLE XI
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 11.01 Intent of the Parties; Reasonableness.
Except with respect to Section 11.08, Section 11.11, Section 11.13,
Section 11.14, Section 11.15, Section 11.16 and Section 11.17 the parties hereto
acknowledge and agree that the purpose of Article XI of this Agreement is to
facilitate compliance by the Depositor (and any other depositor of any
securitization involving any Serviced Companion Loan(s)) with the provisions of
Regulation AB and related rules and regulations of the Commission. Neither the
Depositor nor the Trustee shall exercise their rights to request delivery of
information or other performance under these provisions other than reasonably
and in good faith, or for purposes other than compliance with the Securities
Act, the Exchange Act, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ 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, or consensus
among participants in the asset backed securities markets, and agree to comply
with reasonable requests made by the Depositor or the Trustee (and, subject to
Section 11.02, any other depositor or trustee of any securitization involving
any Serviced Companion Loan(s)) in good faith for delivery of information under
these provisions on the basis of evolving interpretations of Regulation AB. In
connection with the Subject Securitization Transaction and any Other
Securitization subject to Regulation AB involving any Serviced Companion
Loan(s), subject to the preceding sentence, the Servicer, the Special Servicer
and the Trustee shall cooperate fully with the Depositor, the Trustee and any
other depositor or trustee of any Other Securitization involving any Serviced
Companion Loan(s), as applicable, to deliver or make available to the Depositor
or the Trustee or any other depositor or trustee of any Other Securitization
involving any Serviced Companion Loan(s), as applicable (including any of their
assignees or designees), any and all information in its possession and necessary
in the reasonable good faith determination of the Depositor or the Trustee (or
any other depositor or trustee of any Other Securitization involving any
Serviced Companion Loan), as applicable, to permit the Depositor (or any other
depositor of an Other Securitization) to comply with the provisions of
Regulation AB, together with such disclosures relating to the Servicer, the
Special Servicer and the Trustee, as applicable, and any Servicing Function
Participant, or the Servicing of the Mortgage Loans, reasonably believed by the
Depositor or the Trustee or any other depositor or trustee of any securitization
involving any Serviced Companion Loan(s), as applicable, in good faith to be
necessary in order to effect such compliance. Each party to this Agreement shall
have a reasonable period of time to comply with any written request made under
this Section 11.01, but in any event, shall, upon reasonable advance written
request, provide information in sufficient time to allow the Depositor or the
Trustee, as applicable, to satisfy any related filing requirements.
Section 11.02 Notification Requirements and Deliveries in Connection
with Securitization of a Serviced Companion Loan.
(a) Any other provision of this Article XI to the contrary not
withstanding, 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 the Serviced Companion Loans, 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 the Subject Securitization Transaction, (ii) until the
depositor or the trustee of such 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 Other Securitization is subject to
Regulation AB and that the Securitization 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 Servicer,
Special Servicer and the Trustee in cooperating with such depositor or trustee
of such other securitization trust (above and beyond their expressed duties
hereunder) shall be the responsibility of such depositor or other securitization
trust. The parties hereto shall have the right to confirm in good faith with the
depositor of such securitization as to whether Regulation AB requires the
delivery of the items identified in this Article XI to the depositor and trustee
of the other 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 Other
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 Other Pooling and Servicing Agreement
relating to such Other Securitization.
(b) Each of the Servicer and the Special Servicer shall, upon
reasonable prior written request given in accordance with the terms of Section
11.02(a) above, permit a holder of a related Serviced Companion Loan to use such
party's description contained in the Prospectus (updated as appropriate by the
applicable Servicer or the Special Servicer, as applicable) for inclusion in the
disclosure materials relating to any securitization of a Serviced Companion
Loan.
(c) The Servicer and the Special Servicer, upon reasonable prior
written request given in accordance with the terms of Section 11.02(a) above,
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 Serviced Companion Loan such
opinion(s) of counsel, certifications and/or indemnification agreement(s) with
respect to the updated description referred in Section 11.02(b) with respect to
such party, substantially identical to those, if any, delivered by the
applicable 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 the
Subject Securitization Transaction (updated as deemed appropriate by the
Servicer or the Special Servicer, or their respective legal counsel, as the case
may be).
Section 11.03 Information to be Provided by the Servicer and the
Special Servicer.
For so long as the Trust is subject to the reporting requirements of
the Exchange Act and for so long as any other securitization trust relating to
any securitized Serviced Companion Loan is subject to the reporting requirements
of the Exchange Act (in addition to any requirements contained in Section
11.09), in connection with the succession to the Servicer, the Special Servicer,
any Additional Servicer or any Servicing Function Participant (if such Servicing
Function Participant is a Servicer as contemplated by Item 1108(a)(2) of
Regulation AB) as a servicer or Sub-Servicer under or as contemplated by this
Agreement or any Serviced Companion Loan Securitization Agreement by any Person
(i) into which the Servicer, the Special Servicer, any Additional Servicer or
any Servicing Function Participant, as the case may be, may be merged or
consolidated, (ii) which may be appointed as a sub-servicer (other than the
appointment of a Loan Seller Sub-Servicer) by the Servicer or Special Servicer
or (iii) which may be appointed as a successor Servicer or Special Servicer
pursuant to Section 7.02, the Servicer, the Special Servicer or any Additional
Servicer or Servicing Function Participant (with respect to the foregoing
clauses (i) and (ii)) or the successor Servicer or the successor Special
Servicer (with respect to the foregoing clause (iii)), as the case may be, shall
provide to the Depositor and to any other depositor related to any other
securitization trust relating to any securitized Serviced Companion Loan, at
least 5 calendar days prior to the effective date of such succession or
appointment, as long as such disclosure prior to such effective date would not
be violative of any applicable law or confidentiality agreement, otherwise
immediately following such effective date, but in no event later than the time
required pursuant to Section 11.09, (x) written notice to the Trustee and the
Depositor (and any other trustee and depositor related to any other
securitization trust relating to any securitized Serviced Companion Loan) of
such succession or appointment and (y) in writing and in form and substance
reasonably satisfactory to the Trustee and the Depositor (or any other trustee
and depositor of any securitization involving any Serviced Companion Loan), all
information reasonably requested by the Depositor so that it may comply with its
reporting obligation under Item 6.02 of Form 8-K with respect to any class of
Certificates or Serviced Companion Loan Securities.
Section 11.04 Information to be Provided by the Trustee.
For so long as the Trust is subject to the reporting requirements of
the Exchange Act (in addition to any requirements contained in Section 11.06),
in connection with the succession to the Trustee as Trustee or co-Trustee under
this Agreement by any Person (i) into which the Trustee may be merged or
consolidated, (ii) which may be appointed as a co-Trustee or separate Trustee
pursuant to Section 8.10, or (iii) that is appointed as a successor Trustee
pursuant to Section 8.08, the Trustee (with respect to the foregoing clauses (i)
and (ii)) or the successor Trustee (with respect to the foregoing clause (iii))
shall provide to the Depositor, and to the depositor related to any other
securitization trust relating to any securitized Serviced Companion Loan, at
least 5 calendar days prior to the effective date of such succession or
appointment, as long as such disclosure prior to such effective date would not
be violative of any applicable law or confidentiality agreement, otherwise
immediately following such effective date, but in no event later than the time
required pursuant to Section 11.09, (x) written notice to the Trustee and the
Depositor, and to the depositor related to any other securitization trust
relating to any securitized Serviced Companion Loan, of such succession or
appointment and (y) in writing and in form and substance reasonably satisfactory
to the Depositor, and to the depositor related to any other securitization trust
relating to any securitized Serviced Companion Loan, all information reasonably
requested by the Depositor, or such other depositor, so that it may comply with
its reporting obligation under Item 6.02 of Form 8-K with respect to any Class
of Certificates.
Section 11.05 Filing Obligations.
The Servicer, the Special Servicer, the Trustee and each Additional
Servicer shall, and the Servicer, the Special Servicer and the Trustee as
applicable, shall use commercially reasonable efforts to cause each Servicing
Function Participant (other than (x) any party to this Agreement or (y) a Loan
Seller Sub-Servicer) with which it has entered into a servicing relationship
with respect to the Mortgage Loans to, reasonably cooperate with the Trustee and
the Depositor (and any other trustee or depositor related to any other
securitization trust relating to any securitized Serviced Companion Loan) in
connection with the Trustee's and Depositor's (or such other trustee's and
depositor's) good faith efforts to satisfy the Trust's (or such other
securitization trust's) reporting requirements under the Exchange Act.
Section 11.06 Form 10-D Filings.
Within 15 calendar days after each Distribution Date (subject to
permitted extensions under the Exchange Act), the Trustee shall prepare and file
on behalf of the Trust the Form 10-D required by the Exchange Act, in form and
substance as required by the Exchange Act and the rules and regulations of the
Commission thereunder, in form and substance as required by the Exchange Act and
such rules and regulations. The Trustee shall file each Form 10-D with a copy of
the related Statement to Certificateholders report attached thereto. A duly
authorized representative of the Depositor shall sign the Forms 10-D filed on
behalf of the Trust. 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 following paragraph, be reported
by the parties set forth on Schedule 7 and directed to the Depositor and Trustee
for approval by the Depositor. The Trustee shall 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.
For so long as the Trust is subject to the reporting requirements of
the Exchange Act and for so long as any other securitization trust relating to
any securitized Serviced Companion Loan is subject to the reporting requirements
of the Exchange Act, as set forth on Schedule 7 hereto, within 5 calendar days
after the related Distribution Date, (i) each Person identified on Schedule 7
shall be required to provide to the Trustee and the Depositor (and to any other
trustee or depositor related to any other securitization trust relating to any
securitized Companion Loan), in ▇▇▇▇▇-compatible format (to the extent available
to such party in such format) or in such other format as otherwise agreed upon
by the Trustee and the Depositor (or such other trustee and depositor) and such
party, to the extent a Servicing Officer or Responsible Officer, as the case may
be, thereof has actual knowledge (other than with respect to disclosure required
pursuant to Item 1117 or Item 1119 of Regulation AB as to such party which shall
be reported if actually known by any Servicing Officer or Responsible Officer,
as the case may be, or any lawyer in the in-house legal department of such
party), any Additional Form 10-D Disclosure, if applicable, described on
Schedule 7, if applicable and (ii) include with such Additional Form 10-D
Disclosure, an Additional Disclosure Notification in the form attached hereto as
Schedule 11. Within 5 calendar days after the related Distribution Date, the
Trustee shall provide to the Depositor, and will thereafter include in the
applicable Form 10-D, any information related to the Trustee or its duties
required to be included in a Form 10-D. The Trustee shall (i) forward any
Additional Form 10-D Disclosure received by it or prepared by it (with respect
to Additional Form 10-D Disclosure relating to the Trustee) to the Depositor at
least 5 calendar days after the related Distribution Date, which delivery will
also include notice to the Depositor of any breaches of pool asset
representations and warranties or transaction covenants of which it has notice,
which the Trustee shall include in the draft Form 10-D provided to the Depositor
in the following paragraph and (ii) at any time prior to filing the related Form
10-D, provide prompt notice to the Depositor to the extent that the Trustee is
notified of an event reportable on Form 10-D for which it has not received the
necessary Additional Form 10-D Disclosure from the applicable party. The
Depositor shall, at least 4 Business Days prior to the date the related Form
10-D is required to be filed, subject to timely receipt of such disclosure, (i)
direct the Trustee either to include the Additional Form 10-D Disclosure, not
include such disclosure or provide comments to such disclosure and (ii) indicate
to the Trustee who will be signing the Form 10-D. The Depositor will be
responsible for any reasonable fees assessed and any expenses incurred by the
Trustee in connection with including any Additional Form 10-D Disclosure on Form
10-D pursuant to this paragraph.
After preparing the Form 10-D, on or prior to the 10th calendar day
after the related Distribution Date (or promptly upon receipt of any Additional
Form 10-D Disclosure from the applicable parties, but in any event within a
reasonable time which would enable the Trust to comply with the filing
requirements of such Form 10-D), the Trustee shall forward electronically a
draft copy of the Form 10-D to the Depositor for review. No later than two
Business Days prior to the 15th calendar day after the related Distribution
Date, a duly authorized representative of the Depositor (or, if so agreed to
between the Depositor and the Trustee, the Trustee pursuant to a power of
attorney (in form and substance reasonably satisfactory to the Trustee) provided
to the Trustee by the Depositor pursuant to Section 11.16(d) and meeting the
requirements of the Exchange Act) shall sign the Form 10-D and return an
electronic or fax copy of such signed Form 10-D (with an original executed hard
copy to follow by overnight mail) to the Trustee. The Trustee shall file such
Form 10-D, upon signature thereof as provided in Section 11.16, not later than
5:30 pm (New York City time) on the 15th calendar day after the related
Distribution Date. If a Form 10-D cannot be filed on time or if a previously
filed Form 10-D needs to be amended, the Trustee will follow the procedures set
forth in Section 11.10(b). Promptly, but no later than one (1) Business Day
after filing with the Commission, the Trustee shall, pursuant to Section 4.02,
make available on its internet website a final executed copy of each Form 10-D
prepared and filed by the Trustee. The parties to this Agreement acknowledge
that the performance by the Trustee of its duties under this Section 11.06
related to the timely preparation and filing of Form 10-D is contingent upon
such parties observing all applicable deadlines in the performance of their
duties under this Section 11.06. The Trustee shall have no liability for any
loss, expense, damage, claim arising out of or with respect to any failure to
properly prepare, arrange for execution or file such Form 10-D where such
failure results from the Trustee's inability or failure to receive on a timely
basis any information from any other 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.
Section 11.07 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") (it being understood that the fiscal year for the Trust ends on
December 31st of each year), commencing in March 2008, the Trustee shall prepare
and file on behalf of the Trust a Form 10-K, in form and substance as required
by the Exchange Act. Each such Form 10-K shall include the following items, in
each case to the extent they have been delivered to the Trustee by March 15,
(i) an annual compliance statement for each applicable Certifying
Servicer pursuant to Item 1123 of Regulation AB, as described under
Section 11.11,
(ii) (A) the annual reports on assessment of compliance with
Servicing Criteria for each Reporting Servicer pursuant to Item 1122 of
Regulation AB, as described under Section 11.12, and (B) if any Reporting
Servicer's report on assessment of compliance with Servicing Criteria
described under Section 11.12 identifies any material instance of
noncompliance, disclosure identifying such instance of noncompliance, or
if any Reporting Servicer's report on assessment of compliance with
Servicing Criteria described under Section 11.12 is not included as an
exhibit to such Form 10-K, disclosure that such report is not included and
an explanation as to why such report is not included,
(iii) (A) the registered public accounting firm attestation report
for each Reporting Servicer pursuant to Item 1122 of Regulation AB, as
described under Section 11.13, and (B) if any registered public accounting
firm attestation report described under Section 11.13 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 as to why
such report is not included, and
(iv) a ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification as described in Section 11.08.
Any disclosure or information in addition to (i) through (iv) above
that is required to be included on Form 10-K ("Additional Form 10-K Disclosure")
shall be determined and prepared pursuant to the following paragraph and be
reported by the parties set forth on Schedule 8 hereto to the Depositor and the
Trustee (and to any other depositor or other trustee related to any other
securitization trust relating to any securitized Serviced Companion Loan) and
approved by the Depositor (or such other depositor), and the Trustee (or such
other trustee) will have no duty or liability for any failure hereunder to
determine or prepare any Additional Form 10-K Disclosure (other than such
Additional Form 10-K Disclosure which is to be reported by it as set forth on
Schedule 9) absent such reporting and approval.
(b) For so long as the Trust (or any other securitization trust
relating to a Serviced Companion Loan) is subject to the reporting requirements
of the Exchange Act, no later than March 1st (with a grace period through March
15th), commencing in March 2008 (i) the parties listed on Schedule 8 hereto
shall be required to provide to the Trustee and the Depositor (and in the case
of any Servicing Function Participant with a copy to the applicable Servicer)
(and to any other depositor or other trustee related to any other securitization
trust relating to any securitized Serviced Companion Loan), to the extent a
Servicing Officer or Responsible Officer, as the case may be, thereof has actual
knowledge (other than with respect to disclosure required pursuant to Item 1117
or Item 1119 of Regulation AB as to such party which shall be reported if
actually known by any Servicing Officer or Responsible Officer, as the case may
be, or any lawyer in the in-house legal department of such party), in
▇▇▇▇▇-compatible format (to the extent available to such party in such format),
or in such other form as otherwise agreed upon by the Trustee and the Depositor
(or such other trustee and depositor) and such party, the form and substance of
the Additional Form 10-K Disclosure described on Schedule 8 applicable to such
party, (ii) include with such Additional Form 10-K Disclosure, an Additional
Disclosure Notification in the form attached hereto as Schedule 11 and (iii) the
Trustee shall, at any time prior to filing the related Form 10-K, provide prompt
notice to the Depositor to the extent that the Trustee is notified of an event
reportable on Form 10-K for which it has not received the necessary Additional
Form 10-K Disclosure from the applicable party. No later than March 15th, the
Depositor will 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; provided
that if the Trustee does not receive a response from the Depositor by such time
the Depositor will be deemed to have consented to the inclusion of such
Additional Form 10-K Disclosure, in such form and substance as was provided to
the Trustee. The Depositor will be responsible for any reasonable fees assessed
and any expenses incurred by the Trustee in connection with including any
Additional Form 10-K Disclosure on Form 10-K pursuant to this paragraph.
(c) After preparing the Form 10-K, on or prior to the March 20th of
each year, the Trustee shall (i) forward electronically a draft copy of the Form
10-K to the Depositor for review and approval and (ii) if not already given,
forward any LNR 10-K Notice required by Section 11.16(e). To the extent received
by the Trustee, such draft shall contain items (i) through (iv) of Section
11.07(a) above. No later than March 25th, a senior officer in charge of
securitization of the Depositor shall sign the Form 10-K and return an
electronic or fax copy of such signed Form 10-K (with an original executed hard
copy to follow by overnight mail) to the Trustee. The Trustee shall file such
Form 10-K, upon signature thereof as provided in Section 11.16, not later than
5:30 pm (New York City time) on the 10-K Filing Deadline. If a Form 10-K cannot
be filed on time or if a previously filed Form 10-K needs to be amended, the
Trustee will follow the procedures set forth in Section 11.10(b). Promptly (but
no later than one Business Day) after filing with the Commission, the Trustee
shall, pursuant to Section 4.02, make available on its internet website a final
executed copy of each Form 10-K prepared and filed by the Trustee. The parties
to this Agreement acknowledge that the performance by the Trustee of its duties
under this Section 11.07 related to the timely preparation and filing of Form
10-K is contingent upon such parties (and any Additional Servicer or Servicing
Function Participant) observing all applicable deadlines in the performance of
their duties under this Section 11.07. The Trustee shall have no liability for
any loss, expense, damage or claim arising out of or with respect to any failure
to properly prepare or timely file such Form 10-K resulting from the Trustee's
inability or failure to obtain or receive any information needed to prepare,
arrange for execution or file such Form 10-K on a timely basis, not resulting
from its own negligence, bad faith or willful misconduct.
Section 11.08 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification.
Each Form 10-K shall include a certification (the "▇▇▇▇▇▇▇▇-▇▇▇▇▇
Certification"), as set forth in Exhibit U-1 attached hereto, required to be
included therewith pursuant to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. Each Reporting Servicer,
the Servicer, the Special Servicer and the Trustee shall use commercially
reasonable efforts to cause each Servicing Function Participant with which it
has entered into a servicing relationship with respect to the Mortgage Loans
(other than (x) any party to this Agreement or (y) any Loan Seller Sub-Servicer)
to, provide to the Person who signs the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification for the
Trust or any other securitization trust that includes a Serviced Companion Loan
(the "Certifying Person"), by March 1st (with a grace period through March 15th)
of each year (and the Trustee, with respect to the Trustee, shall provide a
back-up ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification by March 15th of each year) in which the
Trust is subject to the reporting requirements of the Exchange Act and of each
year in which any other securitization trust relating to any Serviced Companion
Loan is subject to the reporting requirements of the Exchange Act, a
certification (each, a "Performance Certification"), in the forms attached
hereto as Exhibits U-2, U-3, U-4 and U-5, upon which the Certifying Person, the
entity for which the Certifying Person acts as an officer, and such entity's
officers, directors and Affiliates (collectively with the Certifying Person,
"Certification Parties" and each, a "Certification Party") can reasonably rely.
The senior officer in charge of securitization of the Depositor shall serve as
the Certifying Person on behalf of the Trust. If any Reporting Servicer is
terminated or resigns pursuant to the terms of this Agreement, or any other
applicable sub-servicing agreement or primary servicing agreement, as the case
may be, such Reporting Servicer shall provide a Performance Certification to the
Certifying Person pursuant to this Section 11.08 with respect to the period of
time it was subject to this Agreement or any other applicable sub-servicing or
primary servicing agreement, as the case may be. Notwithstanding the foregoing,
nothing in this Section 11.08 shall require any Reporting Servicer (i) to
certify or verify the accurateness or completeness of any information provided
to such Reporting Servicer by third parties, (ii) to certify information other
than to such Reporting Servicer's knowledge and in accordance with such
Reporting Servicer's responsibilities hereunder or (iii) with respect to
completeness of information and reports, to certify anything other than that all
fields of information called for in written reports prepared by such Reporting
Servicer have been completed except as they have been left blank on their face.
Each Performance Certification shall include a reasonable reliance
provision enabling the Certification Parties to rely upon each (i) annual
compliance statement provided pursuant to Section 11.11, (ii) annual report on
assessment of compliance with Servicing Criteria provided pursuant to Section
11.12 and (iii) registered public accounting firm attestation report provided
pursuant to Section 11.13.
With respect to any Non-Serviced Mortgage Loan serviced under a
Non-Serviced Mortgage Loan Pooling Agreement, the Trustee will use commercially
reasonable efforts to procure a ▇▇▇▇▇▇▇▇-▇▇▇▇▇ back-up certification from the
Non-Serviced Mortgage Loan Servicer, Non-Serviced Mortgage Loan Special Servicer
and the Non-Serviced Mortgage Loan Trustee in form and substance similar to a
Performance Certification.
Section 11.09 Form 8-K Filings.
Within four (4) Business Days after the occurrence of an event
requiring disclosure under Form 8-K (each such event, a "Reportable Event"), the
Trustee shall prepare and file on behalf of the Trust any Form 8-K as required
by the Exchange Act and the rules and regulations of the Commission thereunder,
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 9 hereto to which such
Reportable Event relates and such Form 8-K Disclosure Information shall be
delivered to the Depositor and the Trustee (and to any other depositor or other
trustee related to any other securitization trust relating to any securitized
Serviced Companion Loan) and approved by the Depositor (or such other
depositor). The Trustee will have no duty or liability for any failure hereunder
to determine or prepare any Form 8-K Disclosure Information (other than such
Form 8-K Disclosure Information which is to be reported by it as set forth on
Schedule 9) absent such reporting and approval.
For so long as the Trust (or any other securitization trust relating
to a Serviced Companion Loan) is subject to the reporting requirements of the
Exchange Act, the parties listed on Schedule 9 hereto shall, to the extent a
Servicing Officer or Responsible Officer, as the case may be, thereof has actual
knowledge (other than with respect to disclosure required pursuant to Item 1117
or Item 1119 of Regulation AB as to such party which shall be reported if
actually known by any Servicing Officer or Responsible Officer, as the case may
be, or any lawyer in the in-house legal department of such party), use their
reasonable efforts to provide to the Depositor and the Trustee (or any other
depositor and trustee relating to a Serviced Companion Loan) within 1 Business
Day after the occurrence of the Reportable Event, but shall provide in no event
later than noon (New York City time) on the 2nd Business Day after the
occurrence of the Reportable Event, the form and substance of the Form 8-K
Disclosure Information described on Schedule 9 as applicable to such party, in
▇▇▇▇▇-compatible format (to the extent available to such party in such format),
or in such other format as otherwise agreed upon by the Trustee and the
Depositor (and such other trustee and depositor) and such party and accompanied
by an Additional Disclosure Notification in the form attached hereto as Schedule
11. No later than close of business on the third Business Day after the
Reportable Event, the Depositor shall provide comments and, if it determines
that such Form 8-K is required to be filed, direct the Trustee to file such Form
8-K, and upon signature thereof as provided below, the Trustee shall file such
Form 8-K not later than the required filing date. The Depositor will be
responsible for any reasonable fees assessed and any expenses incurred by the
Trustee in connection with including any Form 8-K Disclosure Information on Form
8-K pursuant to this paragraph.
No later than close of business one Business Day (New York City
time) prior to the 8-K filing deadline, a duly authorized representative of the
Depositor (or, if so agreed to between the Depositor and the Trustee, the
Trustee pursuant to a power of attorney (in form and substance reasonably
satisfactory to the Trustee) provided to the Trustee by the Depositor pursuant
to Section 11.16(d) and meeting the requirements of the Exchange Act) shall sign
the Form 8-K and return an electronic or fax copy of such signed Form 8-K (with
an original executed hard copy to follow by overnight mail) to the Trustee. The
Trustee shall file such Form 8-K, upon signature thereof as provided in Section
10.16, not later than (i) 5:30 pm (New York City time) on the 4th Business Day
following the reportable event or (ii) such other time as the Depositor and the
Trustee mutually agree is permitted by the Commission for the filing such Form
8-K. If a Form 8-K cannot be filed on time or if a previously filed Form 8-K
needs to be amended, the Trustee will follow the procedures set forth in Section
11.10(b). Promptly, but in no event later than one (1) Business Day after filing
with the Commission, the Trustee will, pursuant to Section 4.02, make available
on its internet website a final executed copy of each Form 8-K prepared and
filed by the Trustee. The parties to this Agreement acknowledge that the
performance by the Trustee of its duties under this Section 11.09 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 11.09. The Trustee shall have no liability for any loss, expense,
damage, claim arising out of or with respect to any failure to properly prepare,
arrange for execution and/or timely file such Form 8-K, where such failure
results from the Trustee's inability or failure to receive, on a timely basis,
any information from any other party hereto needed to prepare, arrange for
execution or timely file such Form 8-K, not resulting from its own negligence,
bad faith or willful misconduct.
Section 11.10 Form 15 Filing; Incomplete Exchange Act Filings;
Amendments to Exchange Act Reports.
(a) On or before January 30 of the first year in which the Trustee
is able to do so under applicable law, the Trustee shall prepare and file a Form
15 Suspension Notification relating to the automatic suspension of reporting in
respect of the Trust under the Exchange Act. 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, 11.03, 11.06, 11.07, 11.08 and 11.09 shall
be suspended for so long as the Trust is not subject to the reporting
requirements of the Exchange Act.
(b) The Trustee shall promptly notify (which notice, notwithstanding
the provisions of Section 12.05, may be sent by facsimile, telephone or by email
and which shall include the identity of those Reporting Servicers who did not
deliver such information) the Depositor and each Reporting Servicer that failed
to deliver such information, if all, or any portion of, any required disclosure
information to be included in any Form 8-K, Form 10-D or Form 10-K required to
be filed pursuant to this Agreement is not delivered to it within the delivery
deadlines set forth in this Agreement (including annual compliance statements
pursuant to Section 11.11, annual reports on assessment of compliance with
servicing criteria pursuant to Section 11.12 and attestation reports pursuant to
Section 11.13) (exclusive of any grace or cure periods), but only to the extent
the Trustee has actual knowledge that the 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. If the Trustee is
unable to timely file with the Commission all or any required portion of any
Form 8-K, Form 10-D or Form 10-K required to be filed by this Agreement because
required disclosure information was either not delivered to it or delivered to
it after the delivery deadlines set forth in this Agreement or for any other
reason, the Trustee shall promptly notify the Depositor (which notice shall
include the identity of those Reporting Servicers who either did not deliver
such information or delivered such information to it after the delivery
deadlines set forth in this Agreement). In the case of Form 10-D and Form 10-K,
each such Reporting Servicer shall cooperate with the Depositor and the Trustee
to prepare and file a Form 12b-25 and a Form 10-D/A and Form 10-K/A as
applicable, pursuant to Rule 12b-25 of the Exchange Act. In the case of Form
8-K, the Trustee shall, upon receipt of all Form 8-K Disclosure Information and
upon the approval and direction of the Depositor, include such disclosure
information on the next Form 10-D that is required to be filed for the Trust. In
the event that any previously filed Form 8-K, Form 10-D or Form 10-K needs to be
amended, the Trustee shall notify the Depositor and any other necessary parties,
and the parties hereto shall cooperate to prepare any necessary Form 8-K/A, Form
10-D/A or Form 10-K/A. Any Form 15, Form 12b-25 or any amendment to Forms 8-K,
10-D or 10-K shall be signed by a senior officer of the Depositor in charge of
securitization. The parties hereto acknowledge that the performance by the
Trustee of its duties under this Section 11.10 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 performing their duties under this
Section. The Trustee shall have no liability for any loss, expense, damage,
claim arising out of or with respect to any failure to properly prepare, arrange
for execution and/or timely file any such Form 15, Form 12b-25 or any amendments
to Forms 8-K, 10-D or 10-K, where such failure results from the Trustee's
inability or failure to receive, on a timely basis, any information from any
other party hereto needed to prepare, arrange for execution or timely file such
Form 15, Form 12b-25 or any amendments to Forms 8-K, 10-D or 10-K, not resulting
from its own negligence, bad faith or willful misconduct.
Section 11.11 Annual Compliance Statements.
The Servicer, the Special Servicer, the Trustee and each Servicing
Function Participant (if such Servicing Function Participant is a servicer
contemplated by Item 1108(a)(2)(i) through (iii) of Regulation AB) (each a
"Certifying Servicer") shall, and the Servicer, the Special Servicer and the
Trustee shall use commercially reasonable efforts to cause each Additional
Servicer and each Servicing Function Participant (if such Servicing Function
Participant is a servicer contemplated by Item 1108(a)(2)(i), (ii) or (iii) of
Regulation AB) (other than (x) any party to this Agreement or (y) a Loan Seller
Sub-Servicer) with which it has entered into a servicing relationship with
respect to the Mortgage Loans, to, deliver to the Depositor and the Trustee on
or before March 1 (subject to a grace period through March 15th) (or, as to each
year after the Trust ceases to be subject to the reporting requirements of the
Exchange Act, April 15th), with respect to the Servicer, the Special Servicer,
the Trustee, or any Additional Servicer of each year, commencing in March 2008,
an Officer's Certificate stating, as to the signer thereof, 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) that 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 (and each such
other depositor for any other securitization trust relating to a Serviced
Companion Loan) shall have the right to review such Officer's Certificate and,
if applicable, consult with each Certifying Servicer, as applicable, as to the
nature of any failures by such Certifying Servicer, in the fulfillment of any of
the Certifying Servicer's obligations hereunder or under the applicable
sub-servicing or primary servicing agreement.
If any Serviced Companion Loan is deposited into an Other
Securitization which is subject to the reporting requirements of the Exchange
Act, each Certifying Servicer shall provide, if requested by a party to the
Other Pooling and Servicing Agreement, an Officer's Certificate as described in
this Section. With respect to any Non-Serviced Mortgage Loan serviced under a
Non-Serviced Mortgage Loan Pooling Agreement, the Trustee will use commercially
reasonable efforts to procure an Officer's Certificate as described in this
Section from the Non-Serviced Mortgage Loan Servicer, Non-Serviced Mortgage Loan
Special Servicer and the Non-Serviced Mortgage Loan Trustee in form and
substance similar to the Officer's Certificate described in this Section.
Section 11.12 Annual Reports on Assessment of Compliance with
Servicing Criteria.
By March 1st of each year (subject to a grace period through March
15th) in which the Trust is required to file a Form 10-K for the previous fiscal
year, commencing in March 2008, or by April 15th of each year in which the Trust
is not required to file a Form 10-K for the previous fiscal year, the Servicer,
the Special Servicer (regardless of whether the Special Servicer has commenced
special servicing of any Mortgage Loan), the Trustee and each Servicing Function
Participant (other than (x) any party to this Agreement or (y) a Loan Seller
Sub-Servicer), each at its own expense, shall furnish, and each of the preceding
parties, as applicable, shall use commercially reasonable efforts to cause each
Servicing Function Participant (other than (x) any party to this Agreement or
(y) a Loan Seller Sub-Servicer) with which it has entered into a servicing
relationship with respect to the Mortgage Loans to furnish, each at its own
expense, to the Trustee and the Depositor (and to any other depositor or other
trustee related to any other securitization trust relating to any securitized
Serviced Companion Loan), a report on an assessment of compliance with the
Relevant Servicing Criteria taken as a whole involving such party 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 Servicing Criteria to assess compliance with the
Relevant Servicing Criteria, (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 11.07, 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.
No later than 10 Business Days after the end of each fiscal year for
the Trust (and any other securitization trust relating to a Serviced Companion
Loan) for which a Form 10-K is required to be filed, the Servicer, the Special
Servicer and Trustee shall each forward to the Trustee and the Depositor (and to
any other depositor or other trustee related to any other securitization trust
relating to any securitized Serviced Companion Loan) the name and address of
each Servicing Function Participant engaged by it during such year or portion
thereof (except with respect to any Loan Seller Sub-servicer) and what Relevant
Servicing Criteria will be addressed in the report on assessment of compliance
prepared by such Servicing Function Participant. When the Servicer, the Special
Servicer, the Trustee and each Servicing Function Participant submit their
respective assessments by March 1st (with a grace period through March 15th) to
the Trustee (and such other trustee), each such party (who, as applicable, shall
use commercially reasonable efforts to cause each Servicing Function
Participant) shall also at such time include (to the extent received) the
assessment (and attestation required pursuant to Section 11.13) of each
Servicing Function Participant engaged by it in its submission to the Trustee
(and such other trustee).
Promptly after receipt of each such report on assessment of
compliance, (i) the Depositor (and any depositor for any other securitization
trust relating to any securitized Serviced Companion Loan) shall have the right
to review each such report and, if applicable, consult with the Reporting
Servicer as to the nature of any material instance of noncompliance with the
Relevant Servicing Criteria by the Reporting Servicer, and (ii) the Trustee
shall confirm that the assessments address the Relevant Servicing Criteria for
each party as set forth on Schedule 10 and notify the Depositor (and any
depositor for any other securitization trust relating to any securitized
Serviced Companion Loan) of any exceptions. None of the Servicer, the Special
Servicer, the Trustee or any Servicing Function Participant shall be required to
deliver, or to endeavor to cause the delivery of, any such reports until April
15 in any given year so long as it has received written confirmation from the
Depositor (and any other depositor for any other securitization trust relating
to any securitized Serviced Companion Loan) that a Form 10-K is not required to
be filed in respect of the Trust (or, in the case of a securitized Serviced
Companion Loan, the related securitization trust) for the preceding calendar
year. The parties hereto acknowledge that a material instance of noncompliance
with the Servicing Criteria reported on an assessment of compliance pursuant to
this Section 11.12 by the Servicer, the Special Servicer or the Trustee shall
not, as a result of being so reported, in and of itself, constitute a breach of
such party's obligations under this Agreement unless otherwise provided for in
this Agreement.
With respect to any Non-Serviced Mortgage Loan serviced under a
Non-Serviced Mortgage Loan Pooling Agreement, the Trustee will use commercially
reasonable efforts to procure an annual report on assessment of compliance as
described in this Section and an attestation as described in Section 11.13 from
the Non-Serviced Mortgage Loan Servicer, Non-Serviced Mortgage Loan Special
Servicer and the Non-Serviced Mortgage Loan Trustee in form and substance
similar to the annual report on assessment of compliance described in this
Section and the attestation described in Section 11.13.
Section 11.13 Annual Independent Public Accountants' Attestation.
By March 1st (subject to a grace period through March 15th), of each
year, commencing in March 2008, the Servicer, the Special Servicer and the
Trustee, each at its own expense, shall use commercially reasonable efforts to
cause, and each of the preceding parties, as applicable, shall use commercially
reasonable efforts to cause each Servicing Function Participant with which it
has entered into a servicing relationship with respect to the Mortgage Loans
(other than (x) any party to this Agreement or (y) a Loan Seller Sub-Servicer)
to cause, each at its own expense, a registered public accounting firm (which
may also render other services to the Servicer, the Special Servicer, the
Trustee or any Servicing Function Participant, as the case may be) and that is a
member of the American Institute of Certified Public Accountants to furnish a
report to the Trustee and the Depositor (and to any depositor and trustee for
any other securitization trust relating to a Serviced Companion Loan) to the
effect that (i) it has obtained a representation regarding certain matters from
the management of such Reporting Servicer, which includes an assessment from
such Reporting Servicer of its compliance with the Relevant Servicing Criteria,
and (ii) on the basis of an examination conducted by such firm in accordance
with standards for attestation engagements issued or adopted by the PCAOB, it is
expressing an opinion as to whether such Reporting Servicer's compliance with
the Relevant Servicing Criteria was fairly stated in all material respects, or
it cannot express an overall opinion regarding such Reporting Servicer's
assessment of compliance with the Relevant Servicing Criteria. If 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. Such report must be
available for general use and not contain restricted use language.
Promptly after receipt of such report from the Servicer, the Special
Servicer, the Trustee or any Servicing Function Participant with which it has
entered into a servicing relationship with respect to the Mortgage Loans (other
than (x) any party to this Agreement or (y) a Loan Seller Sub-Servicer), (i) the
Depositor (and any other depositor related to a securitization involving any
Serviced Companion Loan) shall have the right to review the report and, if
applicable, consult with the Servicer, the Special Servicer, the Trustee or any
Servicing Function Participant as to the nature of any material instance of
noncompliance by the Servicer, the Special Servicer, the Trustee or any
Servicing Function Participant with the Servicing Criteria applicable to such
Person, with which it has entered into a servicing relationship with respect to
the Mortgage Loans (other than any party to this Agreement), as the case may be,
in the fulfillment of any of the Servicer's, the Special Servicer's, the
Trustee's or the applicable Servicing Function Participant's obligations
hereunder or under any applicable sub-servicing or primary servicing agreement,
and (ii) the Trustee shall confirm that each assessment submitted pursuant to
Section 11.12 is coupled with an attestation meeting the requirements of this
Section and notify the Depositor (and any other depositor related to a
securitization involving any Serviced Companion Loan) of any exceptions. The
Servicer, the Special Servicer, the Trustee or any Servicing Function
Participant shall not be required to deliver, or to endeavor to cause the
delivery of, such reports until April 15 in any given year so long as it has
received written confirmation from the Depositor that a Form 10-K is not
required to be filed in respect of the Trust (or, in the case of a securitized
Serviced Companion Loan, the related securitization trust) for the preceding
fiscal year.
Section 11.14 Exchange Act Reporting and Regulation AB Compliance
Indemnification.
Each of the Servicer, the Special Servicer and the Trustee shall
indemnify and hold harmless each Certification Party (and any comparable party
in an Other Securitization), the Depositor (and any other depositor related to a
securitization involving any Serviced Companion Loan), their respective
directors and officers, and each other person who controls any such entity
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act, against any and all expenses, losses, claims, damages and
other liabilities, including without limitation the costs of investigation,
legal defense and any amounts paid in settlement of any claim or litigation
arising out of (i) the failure to perform its obligations to the Depositor (or
any other depositor related to a securitization involving any Serviced Companion
Loan) or Trustee (or any other trustee related to a securitization involving any
Serviced Companion Loan) under this Article XI by the time required after giving
effect to any applicable grace period and cure period or (ii) the failure of any
Servicing Function Participant or Additional Servicer retained by it (other than
Loan Seller Sub-Servicer) to perform its obligations to the Depositor (or any
other depositor related to a securitization involving any Serviced Companion
Loan) or Trustee (or any other trustee related to a securitization involving any
Serviced Companion Loan) under this Article XI by the time required after giving
effect to any applicable grace period and cure period.
The Servicer, the Special Servicer and the Trustee shall (a) use
commercially reasonable efforts to cause each Additional Servicer and Servicing
Function Participant (other than (x) any party to this Agreement or (y) a Loan
Seller Sub-Servicer) with which it has entered into a servicing relationship
with respect to the Mortgage Loans to indemnify and hold harmless each
Certification Party (and any comparable party in an Other Securitization) from
and against any 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 a breach of its obligations to provide
any of the annual compliance statements or annual assessment of servicing
criteria or attestation reports pursuant to this Agreement, or the applicable
sub-servicing or primary servicing agreement, as applicable.
If the indemnification provided for herein is unavailable or
insufficient to hold harmless any Certification Party, then the Servicer, the
Special Servicer or the Trustee (the "Performing Party") shall use commercially
reasonable efforts to cause each Additional Servicer or other Servicing Function
Participant with which it has entered into a servicing relationship with respect
to the Mortgage Loans (other than (x) any party to this Agreement or (y) a Loan
Seller Sub-Servicer) to 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 to the Depositor or Trustee pursuant to this Article XI. The
Servicer, Special Servicer and the Trustee shall use commercially reasonable
efforts to cause each Additional Servicer or Servicing Function Participant with
which it has entered into a servicing relationship with respect to the Mortgage
Loans (other than (x) any party to this Agreement or (y) a Loan Seller
Sub-Servicer) to agree to the foregoing indemnification and contribution
obligations.
Promptly after receipt by an indemnified party of notice of the
commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party hereunder, notify in
writing the indemnifying party of the commencement thereof; but the omission to
so notify the indemnifying party shall not relieve it from any liability which
it may have to any indemnified party under this Agreement except to the extent
that such omission to notify materially prejudices the indemnifying party. In
case any such action is brought against any indemnified party, after the
indemnifying party has been notified of the commencement of such action, such
indemnifying party shall be entitled to participate therein (at its own expense)
and, to the extent that it may wish, shall be entitled to assume the defense
thereof (jointly with any other indemnifying party similarly notified) with
counsel reasonably satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and after notice from the indemnifying party to such indemnified party
of its election to so assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party for any expenses subsequently incurred
in connection with the defense thereof other than reasonable costs of
investigation. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such indemnified party unless (i) the indemnifying party
and the indemnified party shall have agreed to the retention of such counsel,
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them or (iii) the indemnifying party fails
within a reasonable period of time to designate counsel that is reasonably
satisfactory to the indemnified party. In no event shall the indemnifying
parties be liable for fees and expenses of more than one counsel (in addition to
any local counsel) in any one jurisdiction separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. An indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent.
However, if settled with such consent, the indemnifying party shall indemnify
the indemnified party from and against any loss or liability by reason of such
settlement to the extent that the indemnifying party is otherwise required to do
so under this Agreement. If an indemnifying party assumes the defense of any
proceeding, it shall be entitled to settle such proceeding with the consent of
the indemnified party (which consent shall not be unreasonably withheld) or, if
such settlement (i) provides for an unconditional release of the indemnified
party in connection with all matters relating to the proceeding that have been
asserted against the indemnified party in such proceeding by the other parties
to such settlement and (ii) does not require an admission of fault by the
indemnified party, without the consent of the indemnified party.
Section 11.15 Amendments.
This Article XI may be amended with the written consent of all the
parties hereto pursuant to Section 12.01 for purposes of complying with
Regulation AB and/or to conform to standards developed within the commercial
mortgage backed securities market without, in each case, 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; provided, that the reports and certificates required to be
prepared pursuant to Sections 11.11, 11.12 and 11.13 shall not be eliminated
without the receipt of a letter from each Rating Agency confirming that the
elimination of such reports and certificates will not result in a downgrade,
qualification or withdrawal of the then-current rating of the Certificates.
Section 11.16 Exchange Act Report Signatures; Delivery of Notices;
Interpretation of Grace Periods.
(a) Each Form 8-K report, Form 10-D report and Form 10-K report
shall be signed by the Depositor in accordance with this Agreement and any other
procedures to be agreed upon by the Depositor and the Trustee. The signing party
at the Depositor can be contacted at GE Commercial Mortgage Corporation, c/o
General Electric Capital Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: Capital Markets/▇▇▇▇ ▇▇▇▇▇ and the signing party at the
Trustee, if applicable, can be contacted at ▇▇▇▇▇ Fargo Bank, N.A., ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: GE Commercial Mortgage
Corporation, Series 2007-C1 Trust.
(b) Notwithstanding anything in Section 12.05 to the contrary, any
notice required to be delivered to the Depositor under this Article XI shall be
properly given if sent by facsimile to (▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇,
with a copy to (▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇ ▇▇▇▇▇▇ (or such other numbers as
the Depositor may instruct) or by email to ▇▇▇▇.▇▇▇▇▇@▇▇.▇▇▇, with a copy to
▇▇▇.▇▇▇▇▇▇@▇▇.▇▇▇ (or such other email addresses as the Depositor may instruct).
(c) For the avoidance of doubt:
(i) No Servicer or Special Servicer shall be subject to an Event of
Default pursuant to the last clause of the definition of "Event of
Default," nor shall any such party be deemed to not be in compliance under
this Agreement for purposes of Section 11.14, prior to the date that
causes the Trustee to be delinquent in any filing obligation or during any
grace period provided for in this Article XI, provided, that if any such
party fails to comply with the delivery requirements of this Article XI
that prevents the Trustee from making any required filing or by the
expiration of any applicable grace period, such failure shall constitute
an Event of Default; and
(ii) No Servicer or Special Servicer shall be subject to an Event of
Default pursuant to the last clause of the definition of "Event of
Default," nor shall any such party be deemed to not be in compliance under
this Agreement for purposes of Section 11.14, for failing to deliver any
item required under this Article XI by the time required hereunder
following the date that the Trustee files the Form 15 relating to the
automatic suspension of reporting in respect of the Trust under the
Exchange Act, unless such items will be included in any Exchange Act
report that relates to any year in which the Trust was subject to the
filing requirements of the Exchange Act.
(d) Each Form 8-K report and Form 10-D report shall be signed by the
Depositor, or, if so agreed to between the Depositor and the Trustee, the
Trustee to sign any Form 8-K or Form 10-D pursuant to a power of attorney in
form and substance reasonably satisfactory to the Trustee and meeting the
requirements of Item 601(b)(24) of Regulation S-K as set forth in this Article
XI, the Depositor shall provide its signature or power of attorney to the
Trustee by electronic or facsimile transmission (with hard copy to follow by
overnight mail) no later than the 12th calendar day following the related
Distribution Date for Form 10-D and not later than one Business Day prior to the
required date of filing for Form 8-K; provided, that in each case the Trustee
shall not file the related form until the Depositor has given approval thereof.
(e) No later than the date the Trustee is required to deliver to the
Depositor the Form 10-K pursuant to the first sentence of the last paragraph of
Section 11.07, the Trustee shall, and the Depositor or counsel to the Depositor
may, deliver a notice to LNR (which notice may be given by fax to (305)
▇▇▇-▇▇▇▇, telephone to (▇▇▇) ▇▇▇-▇▇▇▇ or by email to ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
notwithstanding the requirements of Section 12.05) listing any documents
required to be delivered to the Trustee by LNR pursuant to Sections 11.08,
11.11, 11.12 and 11.13 that the Trustee has not received (the "LNR 10-K
Notice"). Following the delivery of the LNR 10-K Notice, LNR shall have until
the expiration of the LNR Cure Period to deliver all of the items required by
Sections 11.08, 11.11, 11.12 and 11.13. For the avoidance of doubt, LNR shall
not be deemed to have failed to perform its obligations under such Sections for
purposes of Section 11.14 or be deemed to be in an Event of Default if LNR has
delivered all of the items required by Sections 11.08, 11.11, 11.12 and 11.13
prior to the expiration of the LNR Cure Period.
(f) No later than the date the Trustee is required to deliver to the
Depositor the Form 10-K pursuant to the first sentence of the last paragraph of
Section 11.07, the Trustee shall, and the Depositor or counsel to the Depositor
may, deliver a notice to Servicer No. 1, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇ (which notice
may be given by fax to (▇▇▇) ▇▇▇-▇▇▇▇, telephone to (▇▇▇) ▇▇▇-▇▇▇▇ and by email
to ▇▇▇▇▇▇_▇_▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇, notwithstanding the requirements of Section
12.05) and ▇▇▇▇▇ ▇▇▇▇▇▇▇ (which notice may be given by fax to (▇▇▇) ▇▇▇-▇▇▇▇,
telephone to (▇▇▇) ▇▇▇-▇▇▇▇ and by email to ▇▇▇▇▇_▇_▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇,
notwithstanding the requirements of Section 12.05) listing any documents
required to be delivered to the Trustee by Servicer No. 1 pursuant to Sections
11.08, 11.11, 11.12 and 11.13 that the Trustee has not received (the "Servicer
No. 1 10-K Notice"). Following the delivery of the Servicer No. 1 10-K Notice,
Servicer No. 1 shall have until the expiration of the Servicer No. 1 Cure Period
to deliver all of the items required by Sections 11.08, 11.11, 11.12 and 11.13.
For the avoidance of doubt, Servicer No. 1 shall not be deemed to have failed to
perform its obligations under such Sections for purposes of Section 11.14 or be
deemed to be in an Event of Default if Servicer No. 1 has delivered all of the
items required by Sections 11.08, 11.11, 11.12 and 11.13 prior to the expiration
of the Servicer No. 1 Cure Period.
(g) No later than the date the Trustee is required to deliver to the
Depositor the Form 10-K pursuant to the first sentence of the last paragraph of
Section 11.07, the Trustee shall, and the Depositor or counsel to the Depositor
may, deliver a notice by overnight registered mail return receipt requested to
Servicer No. 2 at Bank of America, National Association, Capital Markets
Servicing Group, NC1-026-06-01, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Reference: GECMC ▇▇▇▇-▇▇, ▇▇▇▇▇▇▇▇▇: ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇ with a copy to Bank of America Legal Department
GCIB/CMBS NC1-007-20-01 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇ Attention: ▇▇▇▇ ▇▇▇▇▇▇▇, Esq. Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇ (which
notice shall also be given by each of (i) fax to each of ▇▇▇▇▇▇ ▇▇▇▇▇ at (704)
317-4501, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ at (▇▇▇) ▇▇▇-▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ at (▇▇▇) ▇▇▇-▇▇▇▇ and
▇▇▇▇ ▇▇▇▇▇▇▇, (ii) telephone to ▇▇▇▇▇▇ ▇▇▇▇▇ at ▇▇▇-▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ at
(▇▇▇) ▇▇▇-▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ at (▇▇▇) ▇▇▇-▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇ at (▇▇▇) ▇▇▇-▇▇▇▇
and (iii) email to ▇▇▇▇▇▇ ▇▇▇▇▇ at ▇▇▇▇▇▇.▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ at ▇▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ at
▇▇▇▇.▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇ at
▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, notwithstanding the requirements of Section
12.05) listing any documents required to be delivered to the Trustee by Servicer
No. 2 pursuant to Sections 11.08, 11.11, 11.12 and 11.13 that the Trustee has
not received (the "Servicer No. 2 10-K Notice"). Following the delivery of the
Servicer No. 2 10-K Notice, Servicer No. 2 shall have until the expiration of
the Servicer No. 2 Cure Period to deliver all of the items required by Sections
11.08, 11.11, 11.12 and 11.13. For the avoidance of doubt, Servicer No. 2 shall
not be deemed to have failed to perform its obligations under such Sections for
purposes of Section 11.14 or be deemed to be in an Event of Default if Servicer
No. 2 has delivered all of the items required by Sections 11.08, 11.11, 11.12
and 11.13 prior to the expiration of the Servicer No. 2 Cure Period.
Section 11.17 Termination of the Trustee.
Notwithstanding anything to the contrary contained in this
Agreement, the Depositor may immediately terminate the Trustee if the Trustee
fails to comply with any of its obligations under this Article XI; provided that
(a) such termination shall not be effective until a successor trustee shall have
accepted the appointment, (b) the Trustee may not be terminated if it cannot
perform its obligations due to its failure to properly prepare, arrange for
execution or file on a timely basis any Form 8-K, Form 10-K or Form 10-D or any
amendments to such forms or any Form 12b-25 where such failure results from the
Trustee's inability or failure to receive, within the exact time frames set
forth in this Agreement any information, approval, direction or signature from
any other party hereto needed to prepare, arrange for execution or timely file
any such Form 8-K, Form 10-K or Form 10-D or any amendments to such forms or any
Form 12b-25 not resulting from its own negligence, bad faith or willful
misconduct, (c) the Trustee may not be terminated if, following the Trustee's
failure to comply with any of such obligations under Sections 11.06, 11.07,
11.09, 11.11, 11.12 or 11.13 on or prior to the dates by which such obligations
by the time and in the manner contemplated by such Sections (and which failure
is not directly caused by the failure of any other party hereto to fulfill their
obligations by the time and in the manner contemplated by such Sections) are to
be performed pursuant to, and as set forth in, such Sections the Trustee
subsequently complies with such obligations before the Depositor gives written
notice to it that it is terminated in accordance with this Section 11.17 and (d)
the Trustee may not be terminated if the Trustee's failure (and which failure is
not directly caused by the failure of any other party hereto to fulfill their
obligations by the time and in the manner contemplated by Sections 11.06, 11.07
and 11.09) to comply does not cause it to fail in its obligations to timely file
the related Form 8-K, Form 10-D or Form 10-K, as the case may be, by the related
deadline for filing such Form 8-K, Form 10-D or Form 10-K, then the Depositor
shall cease to have the right to terminate the Trustee under this Section 11.17
on the date on which such Form 8-K, Form 10 D or Form 10-K is so filed.
[End of Article XI]
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment.
(a) This Agreement may be amended from time to time by the parties
hereto, without the notice to or consent of any of the Certificateholders or
holders of any Pari Passu Loans or B Notes:
(i) to cure any ambiguity;
(ii) to cause the provisions herein to conform to or be consistent
with or in furtherance of the statements made with respect to the
Certificates, the Trust or this Agreement in the Private Placement
Memorandum or the Prospectus or to correct or supplement any provision
herein or therein which may be inconsistent with any other provision
herein or therein or to correct any error;
(iii) to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification (A) the
Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC, (B) the Grantor Trust
as a grantor trust (at all times that any Certificate is outstanding) or
(C) any trust fund in which a Serviced Companion Loan is included as a
REMIC (at all times that any related securities are outstanding) or to
avoid or minimize the risk of the imposition of any tax on the Trust Fund,
the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided that the Trustee has received an Opinion of
Counsel addressed to the parties to this Agreement (at the expense of the
party requesting the amendment) to the effect that (a) such action is
necessary or desirable to maintain such qualification or to avoid or
minimize the risk of the imposition of any such tax and (b) such action
will not adversely affect in any material respect the interests of any
Certificateholder or any holder of a related Serviced Companion Loan;
(iv) to change the timing and/or nature of deposits into the
Certificate Account, any Serviced Whole Loan Custodial Account, the
Distribution Account or REO Account or to change the name in which the
Certificate Account or any Serviced Whole Loan Custodial Account is
maintained, provided that (a) the P&I Advance Date shall in no event be
later than the related Distribution Date, (b) such change shall not, as
evidenced by an Opinion of Counsel addressed to the parties to this
Agreement (at the expense of the party requesting the amendment),
adversely affect in any material respect the interests of any
Certificateholder or the holder of any Serviced Companion Loan and (c)
such change shall not result in the withdrawal, downgrade or qualification
of the then-current rating assigned to any Class of Certificates or any
class of Serviced Companion Loan Securities as evidenced by a letter from
each applicable Rating Agency and any other applicable rating agency to
such effect;
(v) to modify, eliminate or add to the provisions of Section 5.02(d)
or any other provision hereof as will be necessary to (A) maintain the
qualification of either the Upper-Tier REMIC or the Lower-Tier REMIC as a
REMIC (or any trust fund in which a Serviced Companion Loan is included as
a REMIC, at all times that any related securities are outstanding), to
maintain each Grantor Trust as a grantor trust or to avoid or minimize the
risk of imposition of any tax on the Trust Fund, provided that the Trustee
has received an Opinion of Counsel (at the expense of the party requesting
the amendment) to the effect that (1) the action is necessary or desirable
to maintain qualification or to avoid or minimize the risk and (2) the
action will not adversely affect in any material respect the interests of
any holder of the Certificates or the holder of a Serviced Companion Loan
or (B) to restrict the transfer of the Residual Certificates, provided
that the Depositor has determined that the amendment will not give rise to
any tax with respect to the transfer of the Residual Certificates to a
non-permitted transferee;
(vi) to make any other provisions with respect to matters or
questions arising under this Agreement which shall not be materially
inconsistent with the provisions of this Agreement or any other change,
provided that such action shall not adversely affect in any material
respect the interests of any Certificateholder or any holder of a related
Serviced Companion Loan not consenting thereto as evidenced by an Opinion
of Counsel or by written confirmation from the Rating Agencies to the
effect that the change would not result in the downgrade, withdrawal or
qualification of the then-current rating assigned to any Class of
Certificates or any class of Serviced Companion Loan Securities; and
(vii) to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each applicable Rating Agency to each class of Serviced
Companion Loan Securities, provided that such change shall not result in
the downgrade, withdrawal or qualification of the then-current rating
assigned to any Class of Certificates or any class of Serviced Companion
Loan Securities, as evidenced by a letter from each applicable Rating
Agency to such effect.
(b) This Agreement may also be amended from time to time by the
parties hereto with the consent of the Holders of Certificates evidencing in the
aggregate not less than 66(2)/3% of the Percentage Interests of each Class of
Certificates affected thereby 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 of such
Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans or the Serviced Companion Loans
which are required to be distributed on any Certificate without the
consent of the Holder of such Certificate, or which are required to be
distributed to the holder of any Serviced Companion Loan without the
consent of such holder of any Serviced Companion Loan; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding or the voting rights of the holder of any
Serviced Companion Loan without the consent of such holder of any Serviced
Companion Loan; or
(iv) modify the definition of Servicing Standard without the consent
of the Holders of all Certificates then outstanding and the consent of the
holder of any related Serviced Companion Loan; or
(v) amend this Section 12.01.
(c) Notwithstanding the foregoing, the Trustee will not be entitled
to consent to any amendment hereto without having first received an Opinion of
Counsel (at the expense of the party requesting the amendment or at the Trust
Fund's expense if the Trustee is requesting the amendment on behalf of the
Certificateholders) to the effect that such amendment is permitted hereunder and
that such amendment or the exercise of any power granted to the Servicer, the
Depositor, the Special Servicer, the Trustee or any other specified person in
accordance with such amendment will not (A) result in the imposition of a tax on
the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or either Grantor
Trust or (B) cause the Lower-Tier REMIC or the Upper-Tier REMIC to fail to
qualify as a REMIC or cause either Grantor Trust to fail to qualify as a grantor
trust.
(d) Promptly after the execution of any such amendment, the Trustee
shall make available on its website and furnish a copy of the amendment to the
Depositor, each Certificateholder, each holder of a Serviced Companion Loan and
each Rating Agency.
(e) It shall not be necessary for the consent of Certificateholders
under this Section 12.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe.
(f) The Trustee shall not be obligated to enter into any amendment
pursuant to this Section that affects its rights, duties and immunities under
this Agreement or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to
Section 12.01(a) or (c) shall be borne by the Person seeking the related
amendment, except that if the Servicer or the Trustee requests any amendment of
this Agreement in furtherance of the rights and interests of Certificateholders,
the cost of any Opinion of Counsel required in connection therewith pursuant to
Section 12.01(a) or (c) shall be payable out of the Certificate Account (or, to
the extent the Opinion of Counsel relates to the Mortgage Loan included in the
Serviced Whole Loans, out of the related Serviced Whole Loan Custodial Account).
Notwithstanding any contrary provisions of this Agreement, (i) this Agreement
may not be amended in a manner that would adversely affect the distributions to
the Class A-MFL Swap Counterparty or the rights of the Class A-MFL Swap
Counterparty under the Class A-MFL Swap Contract without the consent of the
Class A-MFL Swap Counterparty and (ii) this Agreement may not be amended in a
manner that would adversely affect the distributions to the Class A-JFL Swap
Counterparty or the rights of the Class A-JFL Swap Counterparty under the Class
A-JFL Swap Contract without the consent of the Class A-JFL Swap Counterparty.
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 Servicer at the expense of the Depositor on direction by the
Special Servicer and with the consent of the Depositor (which may not be
unreasonably withheld), but only upon direction accompanied by an Opinion of
Counsel (the cost of which shall be paid by the Depositor) to the effect that
such recordation materially and beneficially affects the interests of the
Certificateholders.
(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.
(c) The Trustee shall make any filings required under the laws of
the state of its place of business required solely by virtue of the fact of the
location of the Trustee's place of business, the costs of which, if any, to be
at the Trustee's expense.
Section 12.03 Limitation on Rights of Certificateholders and the
Holder of any Serviced Companion Loan.
(a) The death or incapacity of any Certificateholder or holder of a
Serviced Companion Loan shall not operate to terminate this Agreement or the
Trust Fund, nor entitle legal representatives or heirs of such Certificateholder
or holder of any Serviced Companion Loan to claim an accounting or to take any
action or proceeding in any court for a partition or winding up of the Trust
Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) No Certificateholder or holder of a Serviced Companion Loan
shall have any right to vote (except as expressly provided for herein) or in any
manner otherwise control the operation and management of the Trust Fund, or the
obligations of the parties hereto, nor shall anything herein set forth, or
contained in the terms of the Certificates, be construed so as to constitute the
Certificateholders and/or the holder of a Serviced Companion Loan from time to
time as partners or members of an association; nor shall any Certificateholder
or any holder of a Serviced Companion Loan 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 holder of a Serviced Companion Loan
shall have any right by virtue of any provision of this Agreement to institute
any suit, action or proceeding in equity or at law upon or under or with respect
to this Agreement or any Loan, unless, with respect to any suit, action or
proceeding upon or under or with respect to this Agreement, such Holder or
holder of a Serviced Pari Passu Loan or Serviced Companion Loan previously shall
have given to the Trustee a written notice of default hereunder, and of the
continuance thereof, as herein before provided, and unless also (except in the
case of a default by the Trustee) the Holders of Certificates of any Class
evidencing not less than 25% of the related Percentage Interests in such Class
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. The
Trustee shall be under no obligation to exercise any of the trusts or powers
vested in it hereunder or to institute, conduct or defend any litigation
hereunder or in relation hereto at the request, order or direction of any of the
Holders of Certificates unless such Holders have offered to the Trustee
reasonable security against the costs, expenses and liabilities which may be
incurred therein or hereby. 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 if personally delivered at or mailed by registered mail, postage
prepaid (except for notices to the Trustee which shall be deemed to have been
duly given only when received), to:
(a) in the case of the Depositor, GE Commercial Mortgage
Corporation, c/o General Electric Capital Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Capital Markets/▇▇▇▇ ▇▇▇▇▇;
(b) (i) in the case of Servicer ▇▇. ▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, with a copy to:
KeyBank National Association, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, telecopy
number: (▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, with an additional copy to:
Polsinelli ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Suelthaus PC, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇
▇▇▇▇▇▇▇; and
(ii) in the case of Servicer No. 2, Bank of America, National
Association, Capital Markets Servicing Group, NC1-026-06-01, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Servicing Manager, telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇, Reference: GE
Commercial Mortgage Corporation, Series 2007-C1, and with copy to: ▇▇▇▇▇
▇. ▇▇▇▇▇▇, Esq., Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇;
(c) in the case of the Special Servicer, LNR Partners, Inc., ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III, Esq., facsimile number (▇▇▇) ▇▇▇-▇▇▇▇, and
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, facsimile number (▇▇▇) ▇▇▇-▇▇▇▇, with copies to
Bilzin ▇▇▇▇▇▇▇ ▇▇▇▇▇ Price & ▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇, facsimile number (▇▇▇) ▇▇▇-▇▇▇▇;
(d) in the case of the Trustee, Certificate Registrar and the
initial Authenticating Agent, ▇▇▇▇▇ Fargo Bank, N.A., ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust Services (CMBS) (GE
Commercial Mortgage Corporation, Commercial Mortgage Pass-Through Certificates,
Series 2007-C1);
(e) in the case of the Rating Agencies,
(i) ▇▇▇▇▇'▇ Investors Service, Inc., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: CMBS-Monitoring, telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇;
(ii) Standard and Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Commercial Mortgage Surveillance Director, telecopy number:
(▇▇▇) ▇▇▇-▇▇▇▇; and
(f) in the case of the Mortgage Loan Sellers,
(i) General Electric Capital Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇, Managing Director,
telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇, with a copy to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇
▇▇▇▇▇▇, Esq., telecopy number (▇▇▇) ▇▇▇-▇▇▇▇;
(ii) German American Capital Corporation, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇, telecopy number (▇▇▇) ▇▇▇-▇▇▇▇;
(iii) Bank of America, National Association, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇-▇▇▇-▇▇-▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇, telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇ (with copies to ▇▇▇▇ ▇▇▇▇▇▇▇, Esq.,
Assistant General Counsel, Bank of America Corporation, Bank of America
Corporate Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇ 28255), telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇ and with a copy to ▇▇▇▇▇
▇. ▇▇▇▇▇▇, Esq., Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 28202); and
(iv) Barclays Capital Real Estate, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, telecopy number: (212)
412-7476;
(g) in the case of the Underwriters,
(i) Banc of America Securities LLC, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇-▇▇▇-▇▇-▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇, telecopy number (▇▇▇) ▇▇▇-▇▇▇▇ (with copies to ▇▇▇▇ ▇▇▇▇▇▇▇, Esq.,
Assistant General Counsel, Bank of America Corporation, Bank of America
Corporate Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇ 28255), telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇ and with a copy to ▇▇▇▇▇
▇. ▇▇▇▇▇▇, Esq., Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 28202);
(ii) Deutsche Bank Securities Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇, telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇;
(iii) Barclays Capital Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇, with
a copy to ▇▇▇ ▇▇▇▇▇▇▇▇, Esq. and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇;
(iv) Citigroup Global Markets Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, telecopy number (▇▇▇) ▇▇▇-▇▇▇▇;
(v) Bear, ▇▇▇▇▇▇▇ & Co., Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇▇, telecopy number (▇▇▇) ▇▇▇-▇▇▇▇;
(h) in the case of the Directing Certificateholder, LNR Securities
Holdings, LLC, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇, (▇▇▇) ▇▇▇-▇▇▇▇; 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. Any notice so mailed within the time prescribed in
this Agreement shall be conclusively presumed to have been duly given, whether
or not the Certificateholder receives such notice.
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 Grant of a Security Interest.
The Depositor intends that the conveyance of the Depositor's right,
title and interest in and to the Mortgage Loans pursuant to this Agreement shall
constitute a sale and not a pledge of security for a loan. If such conveyance is
deemed to be a pledge of security for a loan, however, the Depositor intends
that the rights and obligations of the parties to such loan shall be established
pursuant to the terms of this Agreement. The Depositor also intends and agrees
that, in such event, (i) the Depositor shall be deemed to have granted to the
Trustee (in such capacity) a first priority security interest in the Depositor's
entire right, title and interest in and to the assets comprising the Trust Fund,
including without limitation, the Mortgage Loans, all principal and interest
received or receivable with respect to the Mortgage Loans (other than principal
and interest payments due and payable prior to the Cut-off Date and Principal
Prepayments received prior to the Cut-off Date), all amounts held from time to
time in the Certificate Account, the Serviced Whole Loan Custodial Accounts (to
the extent of the Trust Fund's interest therein), the Distribution Account, the
Interest Reserve Account, the Floating Rate Accounts, the Excess Liquidation
Proceeds Reserve Account and, if established, the REO Accounts (to the extent of
the Trust Fund's interest therein), and all reinvestment earnings on such
amounts, and all of the Depositor's right, title and interest in and to the
proceeds of any title, hazard or other Insurance Policies related to such
Mortgage Loans and (ii) this Agreement shall constitute a security agreement
under applicable law. This Section 12.07 shall constitute notice to the Trustee
pursuant to any of the requirements of the applicable UCC.
Section 12.08 Successors and Assigns; Beneficiaries.
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
holder of a Serviced Companion Loan and any designees thereof acting on behalf
of or exercising the rights of such holder of a Serviced Companion Loan and each
Swap Counterparty shall be third-party beneficiaries to this Agreement with
respect to their rights as specifically provided for herein, subject, in the
case of each Swap Counterparty, to the limited recourse provisions of the
related Swap Agreement. Except as provided in this Section 12.08 and in the
second paragraph of Section 2.03(c), no other person, including, without
limitation, any Mortgagor, shall be entitled to any benefit or equitable right,
remedy or claim under this Agreement.
Each of the Trustee and the Servicer acknowledge that each of the
Non-Serviced Mortgage Loan Depositor, the Non-Serviced Mortgage Loan Servicer,
the Non-Serviced Mortgage Loan Special Servicer or the Non-Serviced Mortgage
Loan Trustee is an intended third-party beneficiary under this Agreement with
respect to any provisions herein relating to indemnification, reimbursement or
notification of such Non-Serviced Mortgage Loan Depositor, Non-Serviced Mortgage
Loan Servicer, Non-Serviced Mortgage Loan Special Servicer or Non-Serviced
Mortgage Loan Trustee.
Section 12.09 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 12.10 Notices to the Rating Agencies.
(a) The Trustee shall use reasonable efforts promptly to 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 that has not been cured;
(iii) the resignation or termination of the Servicer or the Special
Servicer; and
(iv) the repurchase or substitution of Mortgage Loans by a Mortgage
Loan Seller pursuant to Section 3 of the Mortgage Loan Purchase Agreement.
(b) Each of the Servicer (with respect to Mortgage Loans (other than
Non-Serviced Mortgage Loans), Serviced Companion Loans that are not Specially
Serviced Mortgage Loans) or the Special Servicer (with respect to Mortgage Loans
that are Specially Serviced Mortgage Loans), as applicable, shall use reasonable
efforts promptly to 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;
(ii) any change in the location of the Certificate Account or any
Serviced Whole Loan Custodial Account;
(iii) any event that would result in the voluntary or involuntary
termination of any insurance of the accounts of the Trustee;
(iv) any change in the lien priority of any Mortgage Loan;
(v) any additional lease to an anchor tenant or termination of any
existing lease to an anchor tenant at retail properties for any Mortgage
Loan with a Stated Principal Balance that is equal to or greater than the
lesser of (1) an amount greater than 5% of the then aggregate outstanding
principal balances of the Mortgage Loans or (2) $35,000,000;
(vi) any material damage to any Mortgaged Property;
(vii) any assumption with respect to a Mortgage Loan;
(viii) any release or substitution of any Mortgaged Property;
(ix) the making, termination or modification of any New Lease with
respect to any retail, office or industrial property with respect to any
REO Loan that represents one of the ten largest Mortgage Loans based on
Stated Principal Balance;
(x) the merger, consolidation or, succession of the Servicer or
Special Servicer, as applicable; and
(xi) the settlement of any claims brought against the Trust Fund.
(c) Each of the 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 11.11 and 11.12, regardless of whether or not the Trust is subject
to Exchange Act reporting requirements;
(ii) inspection reports and other items delivered to each of the
Servicer and Special Servicer pursuant to Sections 3.12(a) and 3.12(b);
(iii) each of its annual independent public accountants' servicing
reports described in Section 11.13, regardless of whether or not the Trust
is subject to Exchange Act reporting requirements; and
(iv) each waiver and consent provided pursuant to Section 3.08.
(d) The Trustee shall promptly furnish or make available to each
Rating Agency a copy of the Statement to Certificateholders distributed pursuant
to Section 4.02(a) and shall promptly furnish notice the Rating Agencies of (i)
any change in the location of either of the Distribution Account and (ii) the
final payment to any Class of Certificateholders.
(e) The Trustee, the Servicer and the Special Servicer, as
applicable, shall furnish to each Rating Agency with respect to each Mortgage
Loan such information as the Rating Agency shall request and which the Trustee,
the Servicer or Special Servicer, can reasonably provide in accordance with
applicable law and without violating the terms of this Agreement or any Mortgage
Loan documents. The Trustee, the Servicer and Special Servicer, as applicable,
may include any reasonable disclaimer it deems appropriate with respect to such
information. Notwithstanding anything to the contrary herein, nothing in this
Section 12.10 shall require a party to provide duplicative notices or copies to
the Rating Agencies with respect to any of the above listed items.
[End of Article XII]
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized, in each
case as of the day and year first above written.
GE COMMERCIAL MORTGAGE CORPORATION,
Depositor
By: /s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Authorized Signatory
KEYCORP REAL ESTATE CAPITAL MARKETS,
INC.,
Servicer No. 1
By: /s/ ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
Title: Executive Vice President
BANK OF AMERICA, NATIONAL ASSOCIATION
Servicer No. 2,
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Principal
LNR PARTNERS, INC.,
Special Servicer
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇ FARGO BANK, N.A.,
Trustee
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 8th day of May, 2007 before me, a notary public in and for
said State, personally appeared ▇▇▇▇ ▇▇▇▇▇ known to me to be an Authorized
Signatory of GE Commercial Mortgage Corporation, a Delaware corporation that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such corporation, and acknowledged to me that such
corporation 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/ ▇▇▇▇▇ ▇▇▇
--------------
Notary Public
[Notarial Seal]
STATE OF )
) ss.:
COUNTY OF )
On the 4th day of May, 2007, before me, a notary public in and for
said State, personally appeared ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇ known to me to be a EVP of
KeyCorp Real Estate Capital Markets, Inc., a national banking association, that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such national banking association, and acknowledged to
me that such national banking association 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/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------
Notary Public
[Notarial Seal]
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBERG )
On the 4th day of May, 2007, before me, a notary public in and for
said State, personally appeared ▇▇▇▇ ▇. ▇▇▇▇▇▇ known to me to be a Principal of
Bank of America, National Association, a national banking association, that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such national banking association, and acknowledged to
me that such national banking association 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/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
Notary Public
[Notarial Seal]
STATE OF FLORIDA )
) ss.:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this 7th day of
May, 2007 by ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as Vice President of LNR Partners, Inc., a
Florida corporation; such individual is personally known to me or has produced a
driver's license as identification.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------
Notary Public
[Notarial Seal]
STATE OF )
) ss.:
COUNTY OF )
On the 8th day of May, 2007, before me, a notary public in and for
said State, personally appeared ▇▇▇ ▇▇▇▇▇▇▇▇▇ known to me to be a Vice President
of ▇▇▇▇▇ Fargo Bank, N.A., a national banking association, that executed the
within instrument, and also known to me to be the person who executed it on
behalf of such national banking association, and acknowledged to me that such
national banking association 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/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Notary Public
[Notarial Seal]
EXHIBIT A-1
GE COMMERCIAL MORTGAGE CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-C1, CLASS A-1
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
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 PASS-THROUGH RATE ON THE CLASS A-1 CERTIFICATES APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF
WILL BE 3.8840%. THE MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND
PREPAYMENTS RECEIVED ON OR BEFORE CUT-OFF DATE:
DENOMINATION: $68,000,000 $3,953,465,462
DATE OF POOLING AND SERVICING AGREEMENT: AS OF MASTER SERVICERS: KEYCORP REAL ESTATE CAPITAL MARKETS,
MAY 1, 2007 INC. AND BANK OF AMERICA, NATIONAL ASSOCIATION
CUT-OFF DATE: WITH RESPECT TO EACH MORTGAGE LOAN, SPECIAL SERVICER: LNR PARTNERS, INC.
THE LATER OF MAY 1, 2007 OR THE DATE OF ORIGINATION
OF SUCH MORTGAGE LOAN (OR, WITH RESPECT TO LOAN NOS. TRUSTEE: ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
1 AND 16, MAY 5, 2007)
CLOSING DATE: MAY 8, 2007
CUSIP NO.: ▇▇▇▇▇▇▇▇▇
FIRST DISTRIBUTION DATE:
JUNE 11, 2007 ISIN NO.: US36159XAA81
APPROXIMATE AGGREGATE CERTIFICATE NO.: A-1-1
CERTIFICATE BALANCE
OF THE CLASS A-1 CERTIFICATES
AS OF THE CLOSING DATE: $68,000,000
CLASS A-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing fixed rate balloon
and fully amortizing mortgage loans (the "Mortgage Loans"), all payments on or
collections in respect of the Mortgage Loans due after the Cut-off Date, all REO
Properties and revenues received in respect thereof, the mortgagee's rights
under the Insurance Policies, any Assignment of Leases, and any guaranties,
escrow accounts or other collateral as security for the Mortgage Loans and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Account, the Interest Reserve Account, the Excess Interest
Distribution Account and the REO Accounts, formed and sold by
GE COMMERCIAL MORTGAGE CORPORATION
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GE
COMMERCIAL MORTGAGE CORPORATION, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-1 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of May 1, 2007 (the "Pooling and Servicing
Agreement"), among GE Commercial Mortgage Corporation (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Servicers and the Special Servicer. A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated
as Certificates of the series specified on the face hereof (herein called the
"Certificates") and representing an interest in the Class of Certificates
specified on the face hereof equal to the quotient expressed as a percentage
obtained by dividing the Denomination of this Certificate specified on the face
hereof, by the aggregate initial Certificate Balance of the Class A-1
Certificates. The Certificates are designated as the GE Commercial Mortgage
Corporation, Commercial Mortgage Pass-Through Certificates, Series 2007-C1 and
are issued in thirty classes as specifically set forth in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee
shall distribute to the Person in whose name this Certificate is registered as
of the related Record Date, an amount equal to such Person's pro rata share
(based on the Percentage Interest represented by this Certificate) of that
portion of the aggregate amount of principal and interest then distributable, if
any, allocable to the Class of Certificates of the same Class as this
Certificate for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted
of 360 days and each month consisted of 30 days) during the Interest Accrual
Period relating to such Distribution Date at the Class A-1 Pass-Through Rate
specified above on the Certificate Balance of this Certificate immediately prior
to each Distribution Date. Principal and interest allocated to this Certificate
on any Distribution Date will be in an amount due to this Certificate's pro rata
share of the Available Distribution Amount to be distributed on the Certificates
of this Class as of such Distribution Date, with a final distribution to be made
upon retirement of this Certificate as set forth in the Pooling and Servicing
Agreement.
Any Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. Any Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other things,
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Account will be held in the name of the Trustee, on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicers (with respect to the Certificate Account) or the Trustee (with respect
to the Distribution Account) will be authorized to make withdrawals therefrom.
Amounts on deposit in such accounts may be invested in Permitted Investments.
Interest or other income earned on funds (i) in the Certificate Account will be
paid to the Servicers and (ii) in the Distribution Account will be paid to the
Trustee as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account and
the Distribution Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class of
Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder has provided the Trustee with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity having appropriate facilities
therefor. The final distribution on this Certificate shall be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
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 Section 4.01(g) of the Pooling and Servicing Agreement shall
not have been surrendered for cancellation within six months after the time
specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders to surrender their Certificates for
cancellation in order to receive the final distribution with respect thereto. If
within one year after the second notice all such Certificates shall not have
been surrendered for cancellation, the Trustee, directly or through an agent,
shall take such steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it deems 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 under the Pooling and Servicing Agreement by the Trustee as
a result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with Section 4.01(g) of the Pooling and
Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register only upon surrender of this Certificate for
registration of transfer at the office of the Certificate Registrar, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney-in-fact duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized Denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class X-C
and the X-P Certificates will be issued in book-entry form through the
facilities of DTC in Denominations of not less than $1,000,000 initial Notional
Amount and in integral multiples of $1 in excess thereof, with one Certificate
of such Class evidencing an additional amount equal to the remainder of the
initial Notional Amount of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Offered Certificates will be issued in book-entry form
through the facilities of DTC in Denominations of not less than $10,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. Subject to the terms
of the Pooling and Servicing Agreement, the Non-Registered Certificates (other
than the Class X Certificates and the Residual Certificates) will be issued in
book-entry form through the facilities of DTC in Denominations of not less than
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. The
Class R and Class LR Certificates will be issued in fully registered,
certificated form, in Denominations representing Percentage Interests of not
less than 20%.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) thereof. 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 in Section 5.02(b) of the Pooling and Servicing Agreement) incurred
by the Certificate Registrar in connection with such transfer. With respect to
any transfer or exchange of any Certificate, the Certificate Registrar may
require payment by each Transferor of a sum sufficient to cover any tax, expense
or other governmental charge payable in connection with any such transfer or
exchange.
The Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar and any of their agents may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
the Depositor, the Servicers, the Special Servicer, the Trustee, the Certificate
Registrar or any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time by the
Depositor, the Servicers, the Special Servicer and the Trustee, without the
consent of any of the Certificateholders or the holder of any Serviced Pari
Passu Loan or Serviced B Note: to cure any ambiguity; to cause the provisions
therein to conform or be consistent with or in furtherance of the statements
made with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement in the Private Placement Memorandum or the Prospectus or to correct or
supplement any provisions therein or in the Pooling and Servicing Agreement,
that may be inconsistent with any other provision therein or in the Pooling and
Servicing Agreement, or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of (i) the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC (ii) each Grantor Trust as a grantor trust (at all
times that any Certificate is outstanding) or (iii) any trust fund in which a
Serviced Pari Passu Loan or Serviced B Note is included as a REMIC (at all times
that any related securities are outstanding) or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC pursuant to the Code that would be a claim against the Trust
Fund, the Lower-Tier REMIC or the Upper-Tier REMIC; provided that, the Trustee
has received an Opinion of Counsel addressed to the parties to the Pooling and
Servicing Agreement (at the expense of the party requesting the amendment) to
the effect that (a) such action is necessary or desirable to maintain such
qualification or to avoid or minimize the risk of the imposition of any such tax
and (b) such action will not adversely affect in any material respect the
interests of any Certificateholder or any holder of a related Serviced Pari
Passu Loan or Serviced B Note; to change the timing and/or nature of deposits
into the Certificate Account, any Serviced Whole Loan Custodial Account, the
Distribution Account or REO Account or to change the name in which the
Certificate Account or the Serviced Whole Loan Custodial Account is maintained,
provided that (a) the P&I Advance Date shall in no event be later than the
related Distribution Date, (b) such change shall not, as evidenced by an Opinion
of Counsel addressed to the parties to the Pooling and Servicing Agreement (at
the expense of the party requesting the amendment), adversely affect in any
material respect the interests of any Certificateholder or any holder of a
related Serviced Pari Passu Loan or Serviced B Note and (c) such change shall
not result in the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates or any Class of Serviced Pari Passu
Loan Securities, as evidenced by a letter from each Rating Agency to such
effect; to modify, eliminate or add to the provisions of Section 5.02(d) of the
Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," provided that, such change shall not, as evidenced by an
Opinion of Counsel addressed to the parties to the Pooling and Servicing
Agreement, cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or
any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement or any other change, provided that, such action shall not adversely
affect in any material respect the interests of any Certificateholder or any
holder of a related Serviced Pari Passu Loan or Serviced B Note not consenting
thereto as evidenced by an Opinion of Counsel or by written confirmation from
the Rating Agencies to the effect that the change would not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or any Class of Serviced Pari Passu Loan Securities;
and to amend or supplement any provision in the Pooling and Servicing Agreement
to the extent necessary to maintain the rating or ratings assigned to each Class
of Certificates by each applicable Rating Agency and any other applicable rating
agency; provided that, such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or any Class of Serviced Pari Passu Loan Securities, as evidenced
by a letter from each applicable Rating Agency and any other applicable rating
agency to such effect.
The Pooling and Servicing Agreement may also be amended from time to time by
the Depositor, the Servicers, the Special Servicer and the Trustee with the
consent of the Holders of Certificates evidencing in the aggregate not less than
66 2/3% of the Percentage Interests of each Class of Certificates affected
thereby for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Pooling and Servicing Agreement or of
modifying in any manner the rights of the Holders of Certificates of such Class;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate, or which are required to be
distributed to the holder of any Serviced Pari Passu Loan or Serviced B
Note without the consent of such holder of any Serviced Pari Passu Loan or
Serviced B Note; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding or the voting rights of the holder of any
Serviced Pari Passu Loan or Serviced B Note without the consent of such
holder of any Serviced Pari Passu Loan or Serviced B Note; or
(iv) modify the definition of Servicing Standard without the consent
of the Holders of all Certificates then outstanding and the consent of the
holder of any related Serviced Pari Passu Loan or Serviced B Note; or
(v) amend Section 11.01 of the Pooling and Servicing Agreement.
No amendment shall be made to the Pooling and Servicing Agreement unless the
Trustee shall have received an Opinion of Counsel that such amendment is
permitted under the Pooling and Servicing Agreement and will not cause the
Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, each
Grantor Trust to fail to qualify as a grantor trust, cause any trust fund in
which a Serviced Pari Passu Loan or Serviced B Note is included as a REMIC to
fail to qualify as a REMIC or result in the imposition of a tax on the Trust
Fund, the Upper-Tier REMIC or the Lower-Tier REMIC.
The Sole Certificateholder will have the option, upon 60 days' prior notice
given to each of the parties to the Pooling and Servicing Agreement, which
notice the Trustee is required to promptly forward to Certificateholders and
Rating Agencies in the manner set forth in the Pooling and Servicing Agreement,
to exchange all of its Certificates (other than the Residual Certificates) for
all of the Mortgage Loans and each REO Property (or beneficial interest in the
Mortgaged Property under a Non-Serviced Mortgage Loan) remaining in the Trust
Fund, and thereby effect termination of the Trust Fund and early retirement of
the then outstanding Certificates, on any Distribution Date on which the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, Class H
Certificates, Class J Certificates and Class K Certificates is reduced to zero.
If the Sole Certificateholder chooses not to exercise such right, or if the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, Class H
Certificates, Class J Certificates and Class K Certificates has not been reduced
to zero, the Servicers or the Special Servicer (in that order) will have the
option, upon 60 days' prior notice given to the Trustee and each of the other
parties to the Pooling and Servicing Agreement, which notice the Trustee is
required to promptly forward to Certificateholders and Rating Agencies in the
manner set forth in the Pooling and Servicing Agreement, to purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is less than 1% of
the aggregate Cut-off Date Principal Balance of all the Mortgage Loans.
Subject to Section 9.02 of the Pooling and Servicing Agreement, the
obligations created by the Pooling and Servicing Agreement and the Trust Fund
created thereby (other than the obligation of the Trustee to provide for and
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the United States to
the Court of St. ▇▇▇▇▇, living on the date hereof.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to
be duly executed under this official seal.
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar under
the Pooling and Servicing Agreement.
By:
------------------------------------
AUTHORIZED REPRESENTATIVE
Dated: May 8, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1 CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
-----------------------------------
AUTHORIZED REPRESENTATIVE
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _______________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
__________________________________ account number _______________ or, if mailed
by check, to _______________________________________. Statements should be
mailed to _______________________________________________________________. This
information is provided by assignee named above, or ___________________________,
as its agent.
EXHIBIT A-2
GE COMMERCIAL MORTGAGE CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-C1, CLASS A-2
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
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 PASS-THROUGH RATE ON THE CLASS A-2 CERTIFICATES APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF
WILL BE 5.4170%. THE MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND
PREPAYMENTS RECEIVED ON OR BEFORE CUT-OFF DATE:
DENOMINATION: $479,000,000 $3,953,465,462
DATE OF POOLING AND SERVICING AGREEMENT: AS OF MASTER SERVICERS: KEYCORP REAL ESTATE CAPITAL MARKETS,
MAY 1, 2007 INC. AND BANK OF AMERICA, NATIONAL ASSOCIATION
CUT-OFF DATE: WITH RESPECT TO EACH MORTGAGE LOAN, SPECIAL SERVICER: LNR PARTNERS, INC.
THE LATER OF MAY 1, 2007 OR THE DATE OF ORIGINATION
OF SUCH MORTGAGE LOAN (OR, WITH RESPECT TO LOAN NOS. TRUSTEE: ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
1 AND 16, MAY 5, 2007)
CLOSING DATE: MAY 8, 2007
CUSIP NO.: ▇▇▇▇▇▇▇▇▇
FIRST DISTRIBUTION DATE:
JUNE 11, 2007 ISIN NO.: US36159XAB64
APPROXIMATE AGGREGATE CERTIFICATE NO.: A-2-1
CERTIFICATE BALANCE
OF THE CLASS A-2 CERTIFICATES
AS OF THE CLOSING DATE: $479,000,000
CLASS A-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing fixed rate balloon
and fully amortizing mortgage loans (the "Mortgage Loans"), all payments on or
collections in respect of the Mortgage Loans due after the Cut-off Date, all REO
Properties and revenues received in respect thereof, the mortgagee's rights
under the Insurance Policies, any Assignment of Leases, and any guaranties,
escrow accounts or other collateral as security for the Mortgage Loans and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Account, the Interest Reserve Account, the Excess Interest
Distribution Account and the REO Accounts, formed and sold by
GE COMMERCIAL MORTGAGE CORPORATION
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GE
COMMERCIAL MORTGAGE CORPORATION, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-2 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of May 1, 2007 (the "Pooling and Servicing
Agreement"), among GE Commercial Mortgage Corporation (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Servicers and the Special Servicer. A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated
as Certificates of the series specified on the face hereof (herein called the
"Certificates") and representing an interest in the Class of Certificates
specified on the face hereof equal to the quotient expressed as a percentage
obtained by dividing the Denomination of this Certificate specified on the face
hereof, by the aggregate initial Certificate Balance of the Class A-2
Certificates. The Certificates are designated as the GE Commercial Mortgage
Corporation, Commercial Mortgage Pass-Through Certificates, Series 2007-C1 and
are issued in thirty classes as specifically set forth in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee
shall distribute to the Person in whose name this Certificate is registered as
of the related Record Date, an amount equal to such Person's pro rata share
(based on the Percentage Interest represented by this Certificate) of that
portion of the aggregate amount of principal and interest then distributable, if
any, allocable to the Class of Certificates of the same Class as this
Certificate for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted
of 360 days and each month consisted of 30 days) during the Interest Accrual
Period relating to such Distribution Date at the Class A-2 Pass-Through Rate
specified above on the Certificate Balance of this Certificate immediately prior
to each Distribution Date. Principal and interest allocated to this Certificate
on any Distribution Date will be in an amount due to this Certificate's pro rata
share of the Available Distribution Amount to be distributed on the Certificates
of this Class as of such Distribution Date, with a final distribution to be made
upon retirement of this Certificate as set forth in the Pooling and Servicing
Agreement.
Any Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. Any Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other things,
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Account will be held in the name of the Trustee, on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicers (with respect to the Certificate Account) or the Trustee (with respect
to the Distribution Account) will be authorized to make withdrawals therefrom.
Amounts on deposit in such accounts may be invested in Permitted Investments.
Interest or other income earned on funds (i) in the Certificate Account will be
paid to the Servicers and (ii) in the Distribution Account will be paid to the
Trustee as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account and
the Distribution Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class of
Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder has provided the Trustee with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity having appropriate facilities
therefor. The final distribution on this Certificate shall be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
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 Section 4.01(g) of the Pooling and Servicing Agreement shall
not have been surrendered for cancellation within six months after the time
specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders to surrender their Certificates for
cancellation in order to receive the final distribution with respect thereto. If
within one year after the second notice all such Certificates shall not have
been surrendered for cancellation, the Trustee, directly or through an agent,
shall take such steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it deems 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 under the Pooling and Servicing Agreement by the Trustee as
a result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with Section 4.01(g) of the Pooling and
Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register only upon surrender of this Certificate for
registration of transfer at the office of the Certificate Registrar, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney-in-fact duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized Denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class X-P
and the Class X-C Certificates will be issued in book-entry form through the
facilities of DTC in Denominations of not less than $1,000,000 initial Notional
Amount and in integral multiples of $1 in excess thereof, with one Certificate
of such Class evidencing an additional amount equal to the remainder of the
initial Notional Amount of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Offered Certificates will be issued in book-entry form
through the facilities of DTC in Denominations of not less than $10,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. Subject to the terms
of the Pooling and Servicing Agreement, the Non-Registered Certificates (other
than the Class X Certificates and Residual Certificates) will be issued in
book-entry form through the facilities of DTC in Denominations of not less than
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. The
Class R and Class LR Certificates will be issued in fully registered,
certificated form, in Denominations representing Percentage Interests of not
less than 20%.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) thereof. 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 in Section 5.02(b) of the Pooling and Servicing Agreement) incurred
by the Certificate Registrar in connection with such transfer. With respect to
any transfer or exchange of any Certificate, the Certificate Registrar may
require payment by each Transferor of a sum sufficient to cover any tax, expense
or other governmental charge payable in connection with any such transfer or
exchange.
The Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar and any of their agents may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
The Depositor, the Servicers, the Special Servicer, the Trustee, the Certificate
Registrar or any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time by the
Depositor, the Servicers, the Special Servicer and the Trustee, without the
consent of any of the Certificateholders or the holder of any Serviced Pari
Passu Loan or Serviced B Note: to cure any ambiguity; to cause the provisions
therein to conform or be consistent with or in furtherance of the statements
made with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement in the Private Placement Memorandum or the Prospectus or to correct or
supplement any provisions therein or in the Pooling and Servicing Agreement,
that may be inconsistent with any other provision therein or in the Pooling and
Servicing Agreement, or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of (i) the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC (ii) each Grantor Trust as a grantor trust (at all
times that any Certificate is outstanding) or (iii) any trust fund in which a
Serviced Pari Passu Loan or Serviced B Note is included as a REMIC (at all times
that any related securities are outstanding) or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC pursuant to the Code that would be a claim against the Trust
Fund, the Lower-Tier REMIC or the Upper-Tier REMIC; provided that, the Trustee
has received an Opinion of Counsel addressed to the parties to the Pooling and
Servicing Agreement (at the expense of the party requesting the amendment) to
the effect that (a) such action is necessary or desirable to maintain such
qualification or to avoid or minimize the risk of the imposition of any such tax
and (b) such action will not adversely affect in any material respect the
interests of any Certificateholder or any holder of a related Serviced Pari
Passu Loan or Serviced B Note; to change the timing and/or nature of deposits
into the Certificate Account, any Serviced Whole Loan Custodial Account, the
Distribution Account or REO Account or to change the name in which the
Certificate Account or the Serviced Whole Loan Custodial Account is maintained,
provided that (a) the P&I Advance Date shall in no event be later than the
related Distribution Date, (b) such change shall not, as evidenced by an Opinion
of Counsel addressed to the parties to the Pooling and Servicing Agreement (at
the expense of the party requesting the amendment), adversely affect in any
material respect the interests of any Certificateholder or any holder of a
related Serviced Pari Passu Loan or Serviced B Note and (c) such change shall
not result in the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates or any Class of Serviced Pari Passu
Loan Securities, as evidenced by a letter from each Rating Agency to such
effect; to modify, eliminate or add to the provisions of Section 5.02(d) of the
Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," provided that, such change shall not, as evidenced by an
Opinion of Counsel addressed to the parties to the Pooling and Servicing
Agreement, cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or
any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement or any other change, provided that, such action shall not adversely
affect in any material respect the interests of any Certificateholder or any
holder of a related Serviced Pari Passu Loan or Serviced B Note not consenting
thereto as evidenced by an Opinion of Counsel or by written confirmation from
the Rating Agencies to the effect that the change would not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or any Class of Serviced Pari Passu Loan Securities;
and to amend or supplement any provision in the Pooling and Servicing Agreement
to the extent necessary to maintain the rating or ratings assigned to each Class
of Certificates by each applicable Rating Agency and any other applicable rating
agency; provided that, such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or any Class of Serviced Pari Passu Loan Securities, as evidenced
by a letter from each applicable Rating Agency and any other applicable rating
agency to such effect.
The Pooling and Servicing Agreement may also be amended from time to time by
the Depositor, the Servicers, the Special Servicer and the Trustee with the
consent of the Holders of Certificates evidencing in the aggregate not less than
66 2/3% of the Percentage Interests of each Class of Certificates affected
thereby for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Pooling and Servicing Agreement or of
modifying in any manner the rights of the Holders of Certificates of such Class;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate, or which are required to be
distributed to the holder of any Serviced Pari Passu Loan or Serviced B
Note without the consent of such holder of any Serviced Pari Passu Loan or
Serviced B Note; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding or the voting rights of the holder of any
Serviced Pari Passu Loan or Serviced B Note without the consent of such
holder of any Serviced Pari Passu Loan or Serviced B Note; or
(iv) modify the definition of Servicing Standard without the consent
of the Holders of all Certificates then outstanding and the consent of the
holder of any related Serviced Pari Passu Loan or Serviced B Note; or
(v) amend Section 11.01 of the Pooling and Servicing Agreement.
No amendment shall be made to the Pooling and Servicing Agreement unless the
Trustee shall have received an Opinion of Counsel that such amendment is
permitted under the Pooling and Servicing Agreement and will not cause the
Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, each
Grantor Trust to fail to qualify as a grantor trust, cause any trust fund in
which a Serviced Pari Passu Loan or Serviced B Note is included as a REMIC to
fail to qualify as a REMIC or result in the imposition of a tax on the Trust
Fund, the Upper-Tier REMIC or the Lower-Tier REMIC.
The Sole Certificateholder will have the option, upon 60 days' prior notice
given to each of the parties to the Pooling and Servicing Agreement, which
notice the Trustee is required to promptly forward to Certificateholders and
Rating Agencies in the manner set forth in the Pooling and Servicing Agreement,
to exchange all of its Certificates (other than the Residual Certificates) for
all of the Mortgage Loans and each REO Property (or beneficial interest in the
Mortgaged Property under a Non-Serviced Mortgage Loan) remaining in the Trust
Fund, and thereby effect termination of the Trust Fund and early retirement of
the then outstanding Certificates, on any Distribution Date on which the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates is reduced
to zero.
If the Sole Certificateholder chooses not to exercise such right, or if the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates has not been
reduced to zero, the Servicers or the Special Servicer (in that order) will have
the option, upon 60 days' prior notice given to the Trustee and each of the
other parties to the Pooling and Servicing Agreement, which notice the Trustee
is required to promptly forward to Certificateholders and Rating Agencies in the
manner set forth in the Pooling and Servicing Agreement, to purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is less than 1% of
the aggregate Cut-off Date Principal Balance of all the Mortgage Loans.
Subject to Section 9.02 of the Pooling and Servicing Agreement, the
obligations created by the Pooling and Servicing Agreement and the Trust Fund
created thereby (other than the obligation of the Trustee to provide for and
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the United States to
the Court of St. ▇▇▇▇▇, living on the date hereof.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to
be duly executed under this official seal.
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar under
the Pooling and Servicing Agreement.
By:
------------------------------------
AUTHORIZED REPRESENTATIVE
Dated: May 8, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-2 CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
-----------------------------------
AUTHORIZED REPRESENTATIVE
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _______________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
__________________________________ account number _______________ or, if mailed
by check, to _______________________________________. Statements should be
mailed to _______________________________________________________________. This
information is provided by assignee named above, or ___________________________,
as its agent.
EXHIBIT A-3
GE COMMERCIAL MORTGAGE CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-C1, CLASS A-3
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
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 PASS-THROUGH RATE ON THE CLASS A-3 CERTIFICATES APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF
WILL BE 5.4810%. THE MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND
PREPAYMENTS RECEIVED ON OR BEFORE CUT-OFF DATE:
DENOMINATION: $185,000,000 $3,953,465,462
DATE OF POOLING AND SERVICING AGREEMENT: AS OF MASTER SERVICERS: KEYCORP REAL ESTATE CAPITAL MARKETS,
MAY 1, 2007 INC. AND BANK OF AMERICA, NATIONAL ASSOCIATION
CUT-OFF DATE: WITH RESPECT TO EACH MORTGAGE LOAN, SPECIAL SERVICER: LNR PARTNERS, INC.
THE LATER OF MAY 1, 2007 OR THE DATE OF ORIGINATION
OF SUCH MORTGAGE LOAN (OR, WITH RESPECT TO LOAN NOS. TRUSTEE: ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
1 AND 16, MAY 5, 2007)
CLOSING DATE: MAY 8, 2007
CUSIP NO.: ▇▇▇▇▇▇▇▇▇
FIRST DISTRIBUTION DATE:
JUNE 11, 2007 ISIN NO.: US36159XAC48
APPROXIMATE AGGREGATE CERTIFICATE NO.: A-3-1
CERTIFICATE BALANCE
OF THE CLASS A-3 CERTIFICATES
AS OF THE CLOSING DATE: $185,000,000
CLASS A-3 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing fixed rate balloon
and fully amortizing mortgage loans (the "Mortgage Loans"), all payments on or
collections in respect of the Mortgage Loans due after the Cut-off Date, all REO
Properties and revenues received in respect thereof, the mortgagee's rights
under the Insurance Policies, any Assignment of Leases, and any guaranties,
escrow accounts or other collateral as security for the Mortgage Loans and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Account, the Interest Reserve Account, the Excess Interest
Distribution Account and the REO Accounts, formed and sold by
GE COMMERCIAL MORTGAGE CORPORATION
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GE
COMMERCIAL MORTGAGE CORPORATION, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-3 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of May 1, 2007 (the "Pooling and Servicing
Agreement"), among GE Commercial Mortgage Corporation (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Servicers and the Special Servicer. A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated
as Certificates of the series specified on the face hereof (herein called the
"Certificates") and representing an interest in the Class of Certificates
specified on the face hereof equal to the quotient expressed as a percentage
obtained by dividing the Denomination of this Certificate specified on the face
hereof, by the aggregate initial Certificate Balance of the Class A-3
Certificates. The Certificates are designated as the GE Commercial Mortgage
Corporation, Commercial Mortgage Pass-Through Certificates, Series 2007-C1 and
are issued in thirty classes as specifically set forth in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee
shall distribute to the Person in whose name this Certificate is registered as
of the related Record Date, an amount equal to such Person's pro rata share
(based on the Percentage Interest represented by this Certificate) of that
portion of the aggregate amount of principal and interest then distributable, if
any, allocable to the Class of Certificates of the same Class as this
Certificate for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted
of 360 days and each month consisted of 30 days) during the Interest Accrual
Period relating to such Distribution Date at the Class A-3 Pass-Through Rate
specified above on the Certificate Balance of this Certificate immediately prior
to each Distribution Date. Principal and interest allocated to this Certificate
on any Distribution Date will be in an amount due to this Certificate's pro rata
share of the Available Distribution Amount to be distributed on the Certificates
of this Class as of such Distribution Date, with a final distribution to be made
upon retirement of this Certificate as set forth in the Pooling and Servicing
Agreement.
Any Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. Any Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other things,
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Account will be held in the name of the Trustee, on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicers (with respect to the Certificate Account) or the Trustee (with respect
to the Distribution Account) will be authorized to make withdrawals therefrom.
Amounts on deposit in such accounts may be invested in Permitted Investments.
Interest or other income earned on funds (i) in the Certificate Account will be
paid to the Servicers and (ii) in the Distribution Account will be paid to the
Trustee as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account and
the Distribution Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class of
Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder has provided the Trustee with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity having appropriate facilities
therefor. The final distribution on this Certificate shall be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
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 Section 4.01(g) of the Pooling and Servicing Agreement shall
not have been surrendered for cancellation within six months after the time
specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders to surrender their Certificates for
cancellation in order to receive the final distribution with respect thereto. If
within one year after the second notice all such Certificates shall not have
been surrendered for cancellation, the Trustee, directly or through an agent,
shall take such steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it deems 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 under the Pooling and Servicing Agreement by the Trustee as
a result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with Section 4.01(g) of the Pooling and
Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register only upon surrender of this Certificate for
registration of transfer at the office of the Certificate Registrar, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney-in-fact duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized Denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class X-P
and the Class X-C Certificates will be issued in book-entry form through the
facilities of DTC in Denominations of not less than $1,000,000 initial Notional
Amount and in integral multiples of $1 in excess thereof, with one Certificate
of such Class evidencing an additional amount equal to the remainder of the
initial Notional Amount of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Offered Certificates will be issued in book-entry form
through the facilities of DTC in Denominations of not less than $10,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. Subject to the terms
of the Pooling and Servicing Agreement, the Non-Registered Certificates (other
than the Class X Certificates and Residual Certificates) will be issued in
book-entry form through the facilities of DTC in Denominations of not less than
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. The
Class R and Class LR Certificates will be issued in fully registered,
certificated form, in Denominations representing Percentage Interests of not
less than 20%.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) thereof. 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 in Section 5.02(b) of the Pooling and Servicing Agreement) incurred
by the Certificate Registrar in connection with such transfer. With respect to
any transfer or exchange of any Certificate, the Certificate Registrar may
require payment by each Transferor of a sum sufficient to cover any tax, expense
or other governmental charge payable in connection with any such transfer or
exchange.
The Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar and any of their agents may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
The Depositor, the Servicers, the Special Servicer, the Trustee, the Certificate
Registrar or any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time by the
Depositor, the Servicers, the Special Servicer and the Trustee, without the
consent of any of the Certificateholders or the holder of any Serviced Pari
Passu Loan or Serviced B Note: to cure any ambiguity; to cause the provisions
therein to conform or be consistent with or in furtherance of the statements
made with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement in the Private Placement Memorandum or the Prospectus or to correct or
supplement any provisions therein or in the Pooling and Servicing Agreement,
that may be inconsistent with any other provision therein or in the Pooling and
Servicing Agreement, or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of (i) the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC (ii) each Grantor Trust as a grantor trust (at all
times that any Certificate is outstanding) or (iii) any trust fund in which a
Serviced Pari Passu Loan or Serviced B Note is included as a REMIC (at all times
that any related securities are outstanding) or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC pursuant to the Code that would be a claim against the Trust
Fund, the Lower-Tier REMIC or the Upper-Tier REMIC; provided that, the Trustee
has received an Opinion of Counsel addressed to the parties to the Pooling and
Servicing Agreement (at the expense of the party requesting the amendment) to
the effect that (a) such action is necessary or desirable to maintain such
qualification or to avoid or minimize the risk of the imposition of any such tax
and (b) such action will not adversely affect in any material respect the
interests of any Certificateholder or any holder of a related Serviced Pari
Passu Loan or Serviced B Note; to change the timing and/or nature of deposits
into the Certificate Account, any Serviced Whole Loan Custodial Account, the
Distribution Account or REO Account or to change the name in which the
Certificate Account or the Serviced Whole Loan Custodial Account is maintained,
provided that (a) the P&I Advance Date shall in no event be later than the
related Distribution Date, (b) such change shall not, as evidenced by an Opinion
of Counsel addressed to the parties to the Pooling and Servicing Agreement (at
the expense of the party requesting the amendment), adversely affect in any
material respect the interests of any Certificateholder or any holder of a
related Serviced Pari Passu Loan or Serviced B Note and (c) such change shall
not result in the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates or any Class of Serviced Pari Passu
Loan Securities, as evidenced by a letter from each Rating Agency to such
effect; to modify, eliminate or add to the provisions of Section 5.02(d) of the
Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," provided that, such change shall not, as evidenced by an
Opinion of Counsel addressed to the parties to the Pooling and Servicing
Agreement, cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or
any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement or any other change, provided that, such action shall not adversely
affect in any material respect the interests of any Certificateholder or any
holder of a related Serviced Pari Passu Loan or Serviced B Note not consenting
thereto as evidenced by an Opinion of Counsel or by written confirmation from
the Rating Agencies to the effect that the change would not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or any Class of Serviced Pari Passu Loan Securities;
and to amend or supplement any provision in the Pooling and Servicing Agreement
to the extent necessary to maintain the rating or ratings assigned to each Class
of Certificates by each applicable Rating Agency and any other applicable rating
agency; provided that, such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or any Class of Serviced Pari Passu Loan Securities, as evidenced
by a letter from each applicable Rating Agency and any other applicable rating
agency to such effect.
The Pooling and Servicing Agreement may also be amended from time to time by
the Depositor, the Servicers, the Special Servicer and the Trustee with the
consent of the Holders of Certificates evidencing in the aggregate not less than
66 2/3% of the Percentage Interests of each Class of Certificates affected
thereby for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Pooling and Servicing Agreement or of
modifying in any manner the rights of the Holders of Certificates of such Class;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate, or which are required to be
distributed to the holder of any Serviced Pari Passu Loan or Serviced B
Note without the consent of such holder of any Serviced Pari Passu Loan or
Serviced B Note; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding or the voting rights of the holder of any
Serviced Pari Passu Loan or Serviced B Note without the consent of such
holder of any Serviced Pari Passu Loan or Serviced B Note; or
(iv) modify the definition of Servicing Standard without the consent
of the Holders of all Certificates then outstanding and the consent of the
holder of any related Serviced Pari Passu Loan or Serviced B Note; or
(v) amend Section 11.01 of the Pooling and Servicing Agreement.
No amendment shall be made to the Pooling and Servicing Agreement unless the
Trustee shall have received an Opinion of Counsel that such amendment is
permitted under the Pooling and Servicing Agreement and will not cause the
Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, each
Grantor Trust to fail to qualify as a grantor trust, cause any trust fund in
which a Serviced Pari Passu Loan or Serviced B Note is included as a REMIC to
fail to qualify as a REMIC or result in the imposition of a tax on the Trust
Fund, the Upper-Tier REMIC or the Lower-Tier REMIC.
The Sole Certificateholder will have the option, upon 60 days' prior notice
given to each of the parties to the Pooling and Servicing Agreement, which
notice the Trustee is required to promptly forward to Certificateholders and
Rating Agencies in the manner set forth in the Pooling and Servicing Agreement,
to exchange all of its Certificates (other than the Residual Certificates) for
all of the Mortgage Loans and each REO Property (or beneficial interest in the
Mortgaged Property under a Non-Serviced Mortgage Loan) remaining in the Trust
Fund, and thereby effect termination of the Trust Fund and early retirement of
the then outstanding Certificates, on any Distribution Date on which the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates is reduced
to zero.
If the Sole Certificateholder chooses not to exercise such right, or if the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates has not been
reduced to zero, the Servicers or the Special Servicer (in that order) will have
the option, upon 60 days' prior notice given to the Trustee and each of the
other parties to the Pooling and Servicing Agreement, which notice the Trustee
is required to promptly forward to Certificateholders and Rating Agencies in the
manner set forth in the Pooling and Servicing Agreement, to purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is less than 1% of
the aggregate Cut-off Date Principal Balance of all the Mortgage Loans.
Subject to Section 9.02 of the Pooling and Servicing Agreement, the
obligations created by the Pooling and Servicing Agreement and the Trust Fund
created thereby (other than the obligation of the Trustee to provide for and
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the United States to
the Court of St. ▇▇▇▇▇, living on the date hereof.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to
be duly executed under this official seal.
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar under
the Pooling and Servicing Agreement.
By:
------------------------------------
AUTHORIZED REPRESENTATIVE
Dated: May 8, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-3 CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
-----------------------------------
AUTHORIZED REPRESENTATIVE
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _______________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
__________________________________ account number _______________ or, if mailed
by check, to _______________________________________. Statements should be
mailed to _______________________________________________________________. This
information is provided by assignee named above, or ___________________________,
as its agent.
EXHIBIT A-4
GE COMMERCIAL MORTGAGE CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-C1, CLASS A-AB
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
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 PASS-THROUGH RATE ON THE CLASS A-AB CERTIFICATES APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF
WILL BE 5.4770%. THE MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND
PREPAYMENTS RECEIVED ON OR BEFORE CUT-OFF DATE:
DENOMINATION: $54,898,000 $3,953,465,462
DATE OF POOLING AND SERVICING AGREEMENT: AS OF MASTER SERVICERS: KEYCORP REAL ESTATE CAPITAL MARKETS,
MAY 1, 2007 INC. AND BANK OF AMERICA, NATIONAL ASSOCIATION
CUT-OFF DATE: WITH RESPECT TO EACH MORTGAGE LOAN, SPECIAL SERVICER: LNR PARTNERS, INC.
THE LATER OF MAY 1, 2007 OR THE DATE OF ORIGINATION
OF SUCH MORTGAGE LOAN (OR, WITH RESPECT TO LOAN NOS. TRUSTEE: ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
1 AND 16, MAY 5, 2007)
CLOSING DATE: MAY 8, 2007
CUSIP NO.: ▇▇▇▇▇▇▇▇▇
FIRST DISTRIBUTION DATE:
JUNE 11, 2007 ISIN NO.: US36159XAD21
APPROXIMATE AGGREGATE CERTIFICATE NO.: A-AB-1
CERTIFICATE BALANCE
OF THE CLASS A-AB CERTIFICATES
AS OF THE CLOSING DATE: $54,898,000
CLASS A-AB CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing fixed rate balloon
and fully amortizing mortgage loans (the "Mortgage Loans"), all payments on or
collections in respect of the Mortgage Loans due after the Cut-off Date, all REO
Properties and revenues received in respect thereof, the mortgagee's rights
under the Insurance Policies, any Assignment of Leases, and any guaranties,
escrow accounts or other collateral as security for the Mortgage Loans and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Account, the Interest Reserve Account, the Excess Interest
Distribution Account and the REO Accounts, formed and sold by
GE COMMERCIAL MORTGAGE CORPORATION
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GE
COMMERCIAL MORTGAGE CORPORATION, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-AB Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of May 1, 2007 (the "Pooling and Servicing
Agreement"), among GE Commercial Mortgage Corporation (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Servicers and the Special Servicer. A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated
as Certificates of the series specified on the face hereof (herein called the
"Certificates") and representing an interest in the Class of Certificates
specified on the face hereof equal to the quotient expressed as a percentage
obtained by dividing the Denomination of this Certificate specified on the face
hereof, by the aggregate initial Certificate Balance of the Class A-AB
Certificates. The Certificates are designated as the GE Commercial Mortgage
Corporation, Commercial Mortgage Pass-Through Certificates, Series 2007-C1 and
are issued in thirty classes as specifically set forth in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee
shall distribute to the Person in whose name this Certificate is registered as
of the related Record Date, an amount equal to such Person's pro rata share
(based on the Percentage Interest represented by this Certificate) of that
portion of the aggregate amount of principal and interest then distributable, if
any, allocable to the Class of Certificates of the same Class as this
Certificate for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted
of 360 days and each month consisted of 30 days) during the Interest Accrual
Period relating to such Distribution Date at the Class A-AB Pass-Through Rate
specified above on the Certificate Balance of this Certificate immediately prior
to each Distribution Date. Principal and interest allocated to this Certificate
on any Distribution Date will be in an amount due to this Certificate's pro rata
share of the Available Distribution Amount to be distributed on the Certificates
of this Class as of such Distribution Date, with a final distribution to be made
upon retirement of this Certificate as set forth in the Pooling and Servicing
Agreement.
Any Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. Any Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other things,
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Account will be held in the name of the Trustee, on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicers (with respect to the Certificate Account) or the Trustee (with respect
to the Distribution Account) will be authorized to make withdrawals therefrom.
Amounts on deposit in such accounts may be invested in Permitted Investments.
Interest or other income earned on funds (i) in the Certificate Account will be
paid to the Servicers and (ii) in the Distribution Account will be paid to the
Trustee as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account and
the Distribution Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class of
Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder has provided the Trustee with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity having appropriate facilities
therefor. The final distribution on this Certificate shall be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
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 Section 4.01(g) of the Pooling and Servicing Agreement shall
not have been surrendered for cancellation within six months after the time
specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders to surrender their Certificates for
cancellation in order to receive the final distribution with respect thereto. If
within one year after the second notice all such Certificates shall not have
been surrendered for cancellation, the Trustee, directly or through an agent,
shall take such steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it deems 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 under the Pooling and Servicing Agreement by the Trustee as
a result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with Section 4.01(g) of the Pooling and
Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register only upon surrender of this Certificate for
registration of transfer at the office of the Certificate Registrar, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney-in-fact duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized Denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class X-P
and the Class X-C Certificates will be issued in book-entry form through the
facilities of DTC in Denominations of not less than $1,000,000 initial Notional
Amount and in integral multiples of $1 in excess thereof, with one Certificate
of such Class evidencing an additional amount equal to the remainder of the
initial Notional Amount of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Offered Certificates will be issued in book-entry form
through the facilities of DTC in Denominations of not less than $10,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. Subject to the terms
of the Pooling and Servicing Agreement, the Non-Registered Certificates (other
than the Class X Certificates and Residual Certificates) will be issued in
book-entry form through the facilities of DTC in Denominations of not less than
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. The
Class R and Class LR Certificates will be issued in fully registered,
certificated form, in Denominations representing Percentage Interests of not
less than 20%.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) thereof. 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 in Section 5.02(b) of the Pooling and Servicing Agreement) incurred
by the Certificate Registrar in connection with such transfer. With respect to
any transfer or exchange of any Certificate, the Certificate Registrar may
require payment by each Transferor of a sum sufficient to cover any tax, expense
or other governmental charge payable in connection with any such transfer or
exchange.
The Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar and any of their agents may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
The Depositor, the Servicers, the Special Servicer, the Trustee, the Certificate
Registrar or any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time by the
Depositor, the Servicers, the Special Servicer and the Trustee, without the
consent of any of the Certificateholders or the holder of any Serviced Pari
Passu Loan or Serviced B Note: to cure any ambiguity; to cause the provisions
therein to conform or be consistent with or in furtherance of the statements
made with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement in the Private Placement Memorandum or the Prospectus or to correct or
supplement any provisions therein or in the Pooling and Servicing Agreement,
that may be inconsistent with any other provision therein or in the Pooling and
Servicing Agreement, or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of (i) the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC (ii) each Grantor Trust as a grantor trust (at all
times that any Certificate is outstanding) or (iii) any trust fund in which a
Serviced Pari Passu Loan or Serviced B Note is included as a REMIC (at all times
that any related securities are outstanding) or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC pursuant to the Code that would be a claim against the Trust
Fund, the Lower-Tier REMIC or the Upper-Tier REMIC; provided that, the Trustee
has received an Opinion of Counsel addressed to the parties to the Pooling and
Servicing Agreement (at the expense of the party requesting the amendment) to
the effect that (a) such action is necessary or desirable to maintain such
qualification or to avoid or minimize the risk of the imposition of any such tax
and (b) such action will not adversely affect in any material respect the
interests of any Certificateholder or any holder of a related Serviced Pari
Passu Loan or Serviced B Note; to change the timing and/or nature of deposits
into the Certificate Account, any Serviced Whole Loan Custodial Account, the
Distribution Account or REO Account or to change the name in which the
Certificate Account or the Serviced Whole Loan Custodial Account is maintained,
provided that (a) the P&I Advance Date shall in no event be later than the
related Distribution Date, (b) such change shall not, as evidenced by an Opinion
of Counsel addressed to the parties to the Pooling and Servicing Agreement (at
the expense of the party requesting the amendment), adversely affect in any
material respect the interests of any Certificateholder or any holder of a
related Serviced Pari Passu Loan or Serviced B Note and (c) such change shall
not result in the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates or any Class of Serviced Pari Passu
Loan Securities, as evidenced by a letter from each Rating Agency to such
effect; to modify, eliminate or add to the provisions of Section 5.02(d) of the
Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," provided that, such change shall not, as evidenced by an
Opinion of Counsel addressed to the parties to the Pooling and Servicing
Agreement, cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or
any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement or any other change, provided that, such action shall not adversely
affect in any material respect the interests of any Certificateholder or any
holder of a related Serviced Pari Passu Loan or Serviced B Note not consenting
thereto as evidenced by an Opinion of Counsel or by written confirmation from
the Rating Agencies to the effect that the change would not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or any Class of Serviced Pari Passu Loan Securities or
any Class of Serviced Pari Passu Loan Securities; and to amend or supplement any
provision in the Pooling and Servicing Agreement to the extent necessary to
maintain the rating or ratings assigned to each Class of Certificates by each
applicable Rating Agency and any other applicable rating agency; provided that,
such change shall not result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates or any Class of
Serviced Pari Passu Loan Securities or any Class of Serviced Pari Passu Loan
Securities, as evidenced by a letter from each applicable Rating Agency and any
other applicable rating agency to such effect.
The Pooling and Servicing Agreement may also be amended from time to time by
the Depositor, the Servicers, the Special Servicer and the Trustee with the
consent of the Holders of Certificates evidencing in the aggregate not less than
66 2/3% of the Percentage Interests of each Class of Certificates affected
thereby for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Pooling and Servicing Agreement or of
modifying in any manner the rights of the Holders of Certificates of such Class;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate, or which are required to be
distributed to the holder of any Serviced Pari Passu Loan or Serviced B
Note without the consent of such holder of any Serviced Pari Passu Loan or
Serviced B Note; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding or the voting rights of the holder of any
Serviced Pari Passu Loan or Serviced B Note without the consent of such
holder of any Serviced Pari Passu Loan or Serviced B Note; or
(iv) modify the definition of Servicing Standard without the consent
of the Holders of all Certificates then outstanding and the consent of the
holder of any related Serviced Pari Passu Loan or Serviced B Note; or
(v) amend Section 11.01 of the Pooling and Servicing Agreement.
No amendment shall be made to the Pooling and Servicing Agreement unless the
Trustee shall have received an Opinion of Counsel that such amendment is
permitted under the Pooling and Servicing Agreement and will not cause the
Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, each
Grantor Trust to fail to qualify as a grantor trust, cause any trust fund in
which a Serviced Pari Passu Loan or Serviced B Note is included as a REMIC to
fail to qualify as a REMIC or result in the imposition of a tax on the Trust
Fund, the Upper-Tier REMIC or the Lower-Tier REMIC.
The Sole Certificateholder will have the option, upon 60 days' prior notice
given to each of the parties to the Pooling and Servicing Agreement, which
notice the Trustee is required to promptly forward to Certificateholders and
Rating Agencies in the manner set forth in the Pooling and Servicing Agreement,
to exchange all of its Certificates (other than the Residual Certificates) for
all of the Mortgage Loans and each REO Property (or beneficial interest in the
Mortgaged Property under a Non-Serviced Mortgage Loan) remaining in the Trust
Fund, and thereby effect termination of the Trust Fund and early retirement of
the then outstanding Certificates, on any Distribution Date on which the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, Class H
Certificates, the Class J Certificates and the Class K Certificates is reduced
to zero.
If the Sole Certificateholder chooses not to exercise such right, or if the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates has not been
reduced to zero, the Servicers or the Special Servicer (in that order) will have
the option, upon 60 days' prior notice given to the Trustee and each of the
other parties to the Pooling and Servicing Agreement, which notice the Trustee
is required to promptly forward to Certificateholders and Rating Agencies in the
manner set forth in the Pooling and Servicing Agreement, to purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is less than 1% of
the aggregate Cut-off Date Principal Balance of all the Mortgage Loans.
Subject to Section 9.02 of the Pooling and Servicing Agreement, the
obligations created by the Pooling and Servicing Agreement and the Trust Fund
created thereby (other than the obligation of the Trustee to provide for and
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the United States to
the Court of St. ▇▇▇▇▇, living on the date hereof.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to
be duly executed under this official seal.
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar under
the Pooling and Servicing Agreement.
By:
------------------------------------
AUTHORIZED REPRESENTATIVE
Dated: May 8, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-AB CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
-----------------------------------
AUTHORIZED REPRESENTATIVE
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _______________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
__________________________________ account number _______________ or, if mailed
by check, to _______________________________________. Statements should be
mailed to _______________________________________________________________. This
information is provided by assignee named above, or ___________________________,
as its agent.
EXHIBIT A-5
GE COMMERCIAL MORTGAGE CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-C1, CLASS A-4
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
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 PASS-THROUGH RATE ON THE CLASS A-4 CERTIFICATES APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF
WILL BE 5.5430%. THE MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND
PREPAYMENTS RECEIVED ON OR BEFORE CUT-OFF DATE:
DENOMINATION: $928,800,000 $3,953,465,462
DATE OF POOLING AND SERVICING AGREEMENT: AS OF MASTER SERVICERS: KEYCORP REAL ESTATE CAPITAL MARKETS,
MAY 1, 2007 INC. AND BANK OF AMERICA, NATIONAL ASSOCIATION
CUT-OFF DATE: WITH RESPECT TO EACH MORTGAGE LOAN, SPECIAL SERVICER: LNR PARTNERS, INC.
THE LATER OF MAY 1, 2007 OR THE DATE OF ORIGINATION
OF SUCH MORTGAGE LOAN (OR, WITH RESPECT TO LOAN NOS. TRUSTEE: ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
1 AND 16, MAY 5, 2007)
CLOSING DATE: MAY 8, 2007
CUSIP NO.: ▇▇▇▇▇▇▇▇▇
FIRST DISTRIBUTION DATE:
JUNE 11, 2007 ISIN NO.: US36159XAE04
APPROXIMATE AGGREGATE CERTIFICATE NO.: A-4-1
CERTIFICATE BALANCE
OF THE CLASS A-4 CERTIFICATES
AS OF THE CLOSING DATE: $928,800,000
CLASS A-4 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing fixed rate balloon
and fully amortizing mortgage loans (the "Mortgage Loans"), all payments on or
collections in respect of the Mortgage Loans due after the Cut-off Date, all REO
Properties and revenues received in respect thereof, the mortgagee's rights
under the Insurance Policies, any Assignment of Leases, and any guaranties,
escrow accounts or other collateral as security for the Mortgage Loans and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Account, the Interest Reserve Account, the Excess Interest
Distribution Account and the REO Accounts, formed and sold by
GE COMMERCIAL MORTGAGE CORPORATION
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GE
COMMERCIAL MORTGAGE CORPORATION, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-4 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of May 1, 2007 (the "Pooling and Servicing
Agreement"), among GE Commercial Mortgage Corporation (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Servicers and the Special Servicer. A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated
as Certificates of the series specified on the face hereof (herein called the
"Certificates") and representing an interest in the Class of Certificates
specified on the face hereof equal to the quotient expressed as a percentage
obtained by dividing the Denomination of this Certificate specified on the face
hereof, by the aggregate initial Certificate Balance of the Class A-4
Certificates. The Certificates are designated as the GE Commercial Mortgage
Corporation, Commercial Mortgage Pass-Through Certificates, Series 2007-C1 and
are issued in thirty classes as specifically set forth in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee
shall distribute to the Person in whose name this Certificate is registered as
of the related Record Date, an amount equal to such Person's pro rata share
(based on the Percentage Interest represented by this Certificate) of that
portion of the aggregate amount of principal and interest then distributable, if
any, allocable to the Class of Certificates of the same Class as this
Certificate for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted
of 360 days and each month consisted of 30 days) during the Interest Accrual
Period relating to such Distribution Date at the Class A-4 Pass-Through Rate
specified above on the Certificate Balance of this Certificate immediately prior
to each Distribution Date. Principal and interest allocated to this Certificate
on any Distribution Date will be in an amount due to this Certificate's pro rata
share of the Available Distribution Amount to be distributed on the Certificates
of this Class as of such Distribution Date, with a final distribution to be made
upon retirement of this Certificate as set forth in the Pooling and Servicing
Agreement.
Any Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. Any Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other things,
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Account will be held in the name of the Trustee, on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicers (with respect to the Certificate Account) or the Trustee (with respect
to the Distribution Account) will be authorized to make withdrawals therefrom.
Amounts on deposit in such accounts may be invested in Permitted Investments.
Interest or other income earned on funds (i) in the Certificate Account will be
paid to the Servicers and (ii) in the Distribution Account will be paid to the
Trustee as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account and
the Distribution Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class of
Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder has provided the Trustee with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity having appropriate facilities
therefor. The final distribution on this Certificate shall be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
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 Section 4.01(g) of the Pooling and Servicing Agreement shall
not have been surrendered for cancellation within six months after the time
specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders to surrender their Certificates for
cancellation in order to receive the final distribution with respect thereto. If
within one year after the second notice all such Certificates shall not have
been surrendered for cancellation, the Trustee, directly or through an agent,
shall take such steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it deems 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 under the Pooling and Servicing Agreement by the Trustee as
a result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with Section 4.01(g) of the Pooling and
Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register only upon surrender of this Certificate for
registration of transfer at the office of the Certificate Registrar, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney-in-fact duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized Denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class X-P
and the Class X-C Certificates will be issued in book-entry form through the
facilities of DTC in Denominations of not less than $1,000,000 initial Notional
Amount and in integral multiples of $1 in excess thereof, with one Certificate
of such Class evidencing an additional amount equal to the remainder of the
initial Notional Amount of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Offered Certificates will be issued in book-entry form
through the facilities of DTC in Denominations of not less than $10,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. Subject to the terms
of the Pooling and Servicing Agreement, the Non-Registered Certificates (other
than the Class X Certificates and Residual Certificates) will be issued in
book-entry form through the facilities of DTC in Denominations of not less than
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. The
Class R and Class LR Certificates will be issued in fully registered,
certificated form, in Denominations representing Percentage Interests of not
less than 20%.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) thereof. 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 in Section 5.02(b) of the Pooling and Servicing Agreement) incurred
by the Certificate Registrar in connection with such transfer. With respect to
any transfer or exchange of any Certificate, the Certificate Registrar may
require payment by each Transferor of a sum sufficient to cover any tax, expense
or other governmental charge payable in connection with any such transfer or
exchange.
The Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar and any of their agents may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
The Depositor, the Servicers, the Special Servicer, the Trustee, the Certificate
Registrar or any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time by the
Depositor, the Servicers, the Special Servicer and the Trustee, without the
consent of any of the Certificateholders or the holder of any Serviced Pari
Passu Loan or Serviced B Note: to cure any ambiguity; to cause the provisions
therein to conform or be consistent with or in furtherance of the statements
made with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement in the Private Placement Memorandum or the Prospectus or to correct or
supplement any provisions therein or in the Pooling and Servicing Agreement,
that may be inconsistent with any other provision therein or in the Pooling and
Servicing Agreement, or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of (i) the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC (ii) each Grantor Trust as a grantor trust (at all
times that any Certificate is outstanding) or (iii) any trust fund in which a
Serviced Pari Passu Loan or Serviced B Note is included as a REMIC (at all times
that any related securities are outstanding) or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC pursuant to the Code that would be a claim against the Trust
Fund, the Lower-Tier REMIC or the Upper-Tier REMIC; provided that, the Trustee
has received an Opinion of Counsel addressed to the parties to the Pooling and
Servicing Agreement (at the expense of the party requesting the amendment) to
the effect that (a) such action is necessary or desirable to maintain such
qualification or to avoid or minimize the risk of the imposition of any such tax
and (b) such action will not adversely affect in any material respect the
interests of any Certificateholder or any holder of a related Serviced Pari
Passu Loan or Serviced B Note; to change the timing and/or nature of deposits
into the Certificate Account, any Serviced Whole Loan Custodial Account, the
Distribution Account or REO Account or to change the name in which the
Certificate Account or the Serviced Whole Loan Custodial Account is maintained,
provided that (a) the P&I Advance Date shall in no event be later than the
related Distribution Date, (b) such change shall not, as evidenced by an Opinion
of Counsel addressed to the parties to the Pooling and Servicing Agreement (at
the expense of the party requesting the amendment), adversely affect in any
material respect the interests of any Certificateholder or any holder of a
related Serviced Pari Passu Loan or Serviced B Note and (c) such change shall
not result in the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates or any Class of Serviced Pari Passu
Loan Securities, as evidenced by a letter from each Rating Agency to such
effect; to modify, eliminate or add to the provisions of Section 5.02(d) of the
Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," provided that, such change shall not, as evidenced by an
Opinion of Counsel addressed to the parties to the Pooling and Servicing
Agreement, cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or
any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement or any other change, provided that, such action shall not adversely
affect in any material respect the interests of any Certificateholder or any
holder of a related Serviced Pari Passu Loan or Serviced B Note not consenting
thereto as evidenced by an Opinion of Counsel or by written confirmation from
the Rating Agencies to the effect that the change would not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or any Class of Serviced Pari Passu Loan Securities or
any Class of Serviced Pari Passu Loan Securities; and to amend or supplement any
provision in the Pooling and Servicing Agreement to the extent necessary to
maintain the rating or ratings assigned to each Class of Certificates by each
applicable Rating Agency and any other applicable rating agency; provided that,
such change shall not result in the downgrade, withdrawal or qualification of
the then-current rating assigned to any Class of Certificates or any Class of
Serviced Pari Passu Loan Securities or any Class of Serviced Pari Passu Loan
Securities, as evidenced by a letter from each applicable Rating Agency and any
other applicable rating agency to such effect.
The Pooling and Servicing Agreement may also be amended from time to time by
the Depositor, the Servicers, the Special Servicer and the Trustee with the
consent of the Holders of Certificates evidencing in the aggregate not less than
66 2/3% of the Percentage Interests of each Class of Certificates affected
thereby for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Pooling and Servicing Agreement or of
modifying in any manner the rights of the Holders of Certificates of such Class;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate, or which are required to be
distributed to the holder of any Serviced Pari Passu Loan or Serviced B
Note without the consent of such holder of any Serviced Pari Passu Loan or
Serviced B Note; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding or the voting rights of the holder of any
Serviced Pari Passu Loan or Serviced B Note without the consent of such
holder of any Serviced Pari Passu Loan or Serviced B Note; or
(iv) modify the definition of Servicing Standard without the consent
of the Holders of all Certificates then outstanding and the consent of the
holder of any related Serviced Pari Passu Loan or Serviced B Note; or
(v) amend Section 11.01 of the Pooling and Servicing Agreement.
No amendment shall be made to the Pooling and Servicing Agreement unless the
Trustee shall have received an Opinion of Counsel that such amendment is
permitted under the Pooling and Servicing Agreement and will not cause the
Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, each
Grantor Trust to fail to qualify as a grantor trust, cause any trust fund in
which a Serviced Pari Passu Loan or Serviced B Note is included as a REMIC to
fail to qualify as a REMIC or result in the imposition of a tax on the Trust
Fund, the Upper-Tier REMIC or the Lower-Tier REMIC.
The Sole Certificateholder will have the option, upon 60 days' prior notice
given to each of the parties to the Pooling and Servicing Agreement, which
notice the Trustee is required to promptly forward to Certificateholders and
Rating Agencies in the manner set forth in the Pooling and Servicing Agreement,
to exchange all of its Certificates (other than the Residual Certificates) for
all of the Mortgage Loans and each REO Property (or beneficial interest in the
Mortgaged Property under a Non-Serviced Mortgage Loan) remaining in the Trust
Fund, and thereby effect termination of the Trust Fund and early retirement of
the then outstanding Certificates, on any Distribution Date on which the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates is reduced
to zero.
If the Sole Certificateholder chooses not to exercise such right, or if the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates has not been
reduced to zero, the Servicers or the Special Servicer (in that order) will have
the option, upon 60 days' prior notice given to the Trustee and each of the
other parties to the Pooling and Servicing Agreement, which notice the Trustee
is required to promptly forward to Certificateholders and Rating Agencies in the
manner set forth in the Pooling and Servicing Agreement, to purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is less than 1% of
the aggregate Cut-off Date Principal Balance of all the Mortgage Loans.
Subject to Section 9.02 of the Pooling and Servicing Agreement, the
obligations created by the Pooling and Servicing Agreement and the Trust Fund
created thereby (other than the obligation of the Trustee to provide for and
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the United States to
the Court of St. ▇▇▇▇▇, living on the date hereof.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to
be duly executed under this official seal.
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar under
the Pooling and Servicing Agreement.
By:
------------------------------------
AUTHORIZED REPRESENTATIVE
Dated: May 8, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-4 CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
-----------------------------------
AUTHORIZED REPRESENTATIVE
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _______________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
__________________________________ account number _______________ or, if mailed
by check, to _______________________________________. Statements should be
mailed to _______________________________________________________________. This
information is provided by assignee named above, or ___________________________,
as its agent.
EXHIBIT A-6
GE COMMERCIAL MORTGAGE CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-C1, CLASS A-1A
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
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 PASS-THROUGH RATE ON THE CLASS A-1A CERTIFICATES APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF
WILL BE THE LESSER OF (i) 5.4830% AND THE WEIGHTED THE MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND
AVERAGE NET MORTGAGE RATE FOR ANY DISTRIBUTION DATE PREPAYMENTS RECEIVED ON OR BEFORE CUT-OFF DATE:
$3,953,465,462
DENOMINATION: $1,051,727,000
MASTER SERVICERS: KEYCORP REAL ESTATE CAPITAL MARKETS,
DATE OF POOLING AND SERVICING AGREEMENT: AS OF INC. AND BANK OF AMERICA, NATIONAL ASSOCIATION
MAY 1, 2007
SPECIAL SERVICER: LNR PARTNERS, INC.
CUT-OFF DATE: WITH RESPECT TO EACH MORTGAGE LOAN,
THE LATER OF MAY 1, 2007 OR THE DATE OF ORIGINATION TRUSTEE: ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
OF SUCH MORTGAGE LOAN (OR, WITH RESPECT TO LOAN NOS.
1 AND 16, MAY 5, 2007)
CLOSING DATE: MAY 8, 2007 CUSIP NO. ▇▇▇▇▇▇▇▇▇
FIRST DISTRIBUTION DATE: ISIN NO.: US36159XAF78
JUNE 11, 2007
CERTIFICATE NO.: A-1A-1
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-1A CERTIFICATES
AS OF THE CLOSING DATE: $1,051,727,000
CLASS A-1A CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing fixed rate balloon
and fully amortizing mortgage loans (the "Mortgage Loans"), all payments on or
collections in respect of the Mortgage Loans due after the Cut-off Date, all REO
Properties and revenues received in respect thereof, the mortgagee's rights
under the Insurance Policies, any Assignment of Leases, and any guaranties,
escrow accounts or other collateral as security for the Mortgage Loans and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Account, the Interest Reserve Account, the Excess Interest
Distribution Account and the REO Accounts, formed and sold by
GE COMMERCIAL MORTGAGE CORPORATION
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GE
COMMERCIAL MORTGAGE CORPORATION, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-1A Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of May 1, 2007 (the "Pooling and Servicing
Agreement"), among GE Commercial Mortgage Corporation (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Servicers and the Special Servicer. A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated
as Certificates of the series specified on the face hereof (herein called the
"Certificates") and representing an interest in the Class of Certificates
specified on the face hereof equal to the quotient expressed as a percentage
obtained by dividing the Denomination of this Certificate specified on the face
hereof, by the aggregate initial Certificate Balance of the Class A-1A
Certificates. The Certificates are designated as the GE Commercial Mortgage
Corporation, Commercial Mortgage Pass-Through Certificates, Series 2007-C1 and
are issued in thirty classes as specifically set forth in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee
shall distribute to the Person in whose name this Certificate is registered as
of the related Record Date, an amount equal to such Person's pro rata share
(based on the Percentage Interest represented by this Certificate) of that
portion of the aggregate amount of principal and interest then distributable, if
any, allocable to the Class of Certificates of the same Class as this
Certificate for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted
of 360 days and each month consisted of 30 days) during the Interest Accrual
Period relating to such Distribution Date at the Class A-1A Pass-Through Rate
specified above on the Certificate Balance of this Certificate immediately prior
to each Distribution Date. Principal and interest allocated to this Certificate
on any Distribution Date will be in an amount due to this Certificate's pro rata
share of the Available Distribution Amount to be distributed on the Certificates
of this Class as of such Distribution Date, with a final distribution to be made
upon retirement of this Certificate as set forth in the Pooling and Servicing
Agreement.
Any Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. Any Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other things,
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Account will be held in the name of the Trustee, on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicers (with respect to the Certificate Account) or the Trustee (with respect
to the Distribution Account) will be authorized to make withdrawals therefrom.
Amounts on deposit in such accounts may be invested in Permitted Investments.
Interest or other income earned on funds (i) in the Certificate Account will be
paid to the Servicers and (ii) in the Distribution Account will be paid to the
Trustee as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account and
the Distribution Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class of
Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder has provided the Trustee with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity having appropriate facilities
therefor. The final distribution on this Certificate shall be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
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 Section 4.01(g) of the Pooling and Servicing Agreement shall
not have been surrendered for cancellation within six months after the time
specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders to surrender their Certificates for
cancellation in order to receive the final distribution with respect thereto. If
within one year after the second notice all such Certificates shall not have
been surrendered for cancellation, the Trustee, directly or through an agent,
shall take such steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it deems 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 under the Pooling and Servicing Agreement by the Trustee as
a result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with Section 4.01(g) of the Pooling and
Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register only upon surrender of this Certificate for
registration of transfer at the office of the Certificate Registrar, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney-in-fact duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized Denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class X-P
and the Class X-C Certificates will be issued in book-entry form through the
facilities of DTC in Denominations of not less than $1,000,000 initial Notional
Amount and in integral multiples of $1 in excess thereof, with one Certificate
of such Class evidencing an additional amount equal to the remainder of the
initial Notional Amount of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Offered Certificates will be issued in book-entry form
through the facilities of DTC in Denominations of not less than $10,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. Subject to the terms
of the Pooling and Servicing Agreement, the Non-Registered Certificates (other
than the Class X Certificates and Residual Certificates) will be issued in
book-entry form through the facilities of DTC in Denominations of not less than
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. The
Class R and Class LR Certificates will be issued in fully registered,
certificated form, in Denominations representing Percentage Interests of not
less than 20%.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) thereof. 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 in Section 5.02(b) of the Pooling and Servicing Agreement) incurred
by the Certificate Registrar in connection with such transfer. With respect to
any transfer or exchange of any Certificate, the Certificate Registrar may
require payment by each Transferor of a sum sufficient to cover any tax, expense
or other governmental charge payable in connection with any such transfer or
exchange.
The Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar and any of their agents may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
The Depositor, the Servicers, the Special Servicer, the Trustee, the Certificate
Registrar or any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time by the
Depositor, the Servicers, the Special Servicer and the Trustee, without the
consent of any of the Certificateholders or the holder of any Serviced Pari
Passu Loan or Serviced B Note: to cure any ambiguity; to cause the provisions
therein to conform or be consistent with or in furtherance of the statements
made with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement in the Private Placement Memorandum or the Prospectus or to correct or
supplement any provisions therein or in the Pooling and Servicing Agreement,
that may be inconsistent with any other provision therein or in the Pooling and
Servicing Agreement, or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of (i) the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC (ii) each Grantor Trust as a grantor trust (at all
times that any Certificate is outstanding) or (iii) any trust fund in which a
Serviced Pari Passu Loan or Serviced B Note is included as a REMIC (at all times
that any related securities are outstanding) or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC pursuant to the Code that would be a claim against the Trust
Fund, the Lower-Tier REMIC or the Upper-Tier REMIC; provided that, the Trustee
has received an Opinion of Counsel addressed to the parties to the Pooling and
Servicing Agreement (at the expense of the party requesting the amendment) to
the effect that (a) such action is necessary or desirable to maintain such
qualification or to avoid or minimize the risk of the imposition of any such tax
and (b) such action will not adversely affect in any material respect the
interests of any Certificateholder or any holder of a related Serviced Pari
Passu Loan or Serviced B Note; to change the timing and/or nature of deposits
into the Certificate Account, any Serviced Whole Loan Custodial Account, the
Distribution Account or REO Account or to change the name in which the
Certificate Account or the Serviced Whole Loan Custodial Account is maintained,
provided that (a) the P&I Advance Date shall in no event be later than the
related Distribution Date, (b) such change shall not, as evidenced by an Opinion
of Counsel addressed to the parties to the Pooling and Servicing Agreement (at
the expense of the party requesting the amendment), adversely affect in any
material respect the interests of any Certificateholder or any holder of a
related Serviced Pari Passu Loan or Serviced B Note and (c) such change shall
not result in the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates or any Class of Serviced Pari Passu
Loan Securities, as evidenced by a letter from each Rating Agency to such
effect; to modify, eliminate or add to the provisions of Section 5.02(d) of the
Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," provided that, such change shall not, as evidenced by an
Opinion of Counsel addressed to the parties to the Pooling and Servicing
Agreement, cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or
any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement or any other change, provided that, such action shall not adversely
affect in any material respect the interests of any Certificateholder or any
holder of a related Serviced Pari Passu Loan or Serviced B Note not consenting
thereto as evidenced by an Opinion of Counsel or by written confirmation from
the Rating Agencies to the effect that the change would not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or any Class of Serviced Pari Passu Loan Securities;
and to amend or supplement any provision in the Pooling and Servicing Agreement
to the extent necessary to maintain the rating or ratings assigned to each Class
of Certificates by each applicable Rating Agency and any other applicable rating
agency; provided that, such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or any Class of Serviced Pari Passu Loan Securities, as evidenced
by a letter from each applicable Rating Agency and any other applicable rating
agency to such effect.
The Pooling and Servicing Agreement may also be amended from time to time by
the Depositor, the Servicers, the Special Servicer and the Trustee with the
consent of the Holders of Certificates evidencing in the aggregate not less than
66 2/3% of the Percentage Interests of each Class of Certificates affected
thereby for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Pooling and Servicing Agreement or of
modifying in any manner the rights of the Holders of Certificates of such Class;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate, or which are required to be
distributed to the holder of any Serviced Pari Passu Loan or Serviced B
Note without the consent of such holder of any Serviced Pari Passu Loan or
Serviced B Note; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding or the voting rights of the holder of any
Serviced Pari Passu Loan or Serviced B Note without the consent of such
holder of any Serviced Pari Passu Loan or Serviced B Note; or
(iv) modify the definition of Servicing Standard without the consent
of the Holders of all Certificates then outstanding and the consent of the
holder of any related Serviced Pari Passu Loan or Serviced B Note; or
(v) amend Section 11.01 of the Pooling and Servicing Agreement.
No amendment shall be made to the Pooling and Servicing Agreement unless the
Trustee shall have received an Opinion of Counsel that such amendment is
permitted under the Pooling and Servicing Agreement and will not cause the
Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, each
Grantor Trust to fail to qualify as a grantor trust, cause any trust fund in
which a Serviced Pari Passu Loan or Serviced B Note is included as a REMIC to
fail to qualify as a REMIC or result in the imposition of a tax on the Trust
Fund, the Upper-Tier REMIC or the Lower-Tier REMIC.
The Sole Certificateholder will have the option, upon 60 days' prior notice
given to each of the parties to the Pooling and Servicing Agreement, which
notice the Trustee is required to promptly forward to Certificateholders and
Rating Agencies in the manner set forth in the Pooling and Servicing Agreement,
to exchange all of its Certificates (other than the Residual Certificates) for
all of the Mortgage Loans and each REO Property (or beneficial interest in the
Mortgaged Property under a Non-Serviced Mortgage Loan) remaining in the Trust
Fund, and thereby effect termination of the Trust Fund and early retirement of
the then outstanding Certificates, on any Distribution Date on which the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates is reduced
to zero.
If the Sole Certificateholder chooses not to exercise such right, or if the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates has not been
reduced to zero, the Servicers or the Special Servicer (in that order) will have
the option, upon 60 days' prior notice given to the Trustee and each of the
other parties to the Pooling and Servicing Agreement, which notice the Trustee
is required to promptly forward to Certificateholders and Rating Agencies in the
manner set forth in the Pooling and Servicing Agreement, to purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is less than 1% of
the aggregate Cut-off Date Principal Balance of all the Mortgage Loans.
Subject to Section 9.02 of the Pooling and Servicing Agreement, the
obligations created by the Pooling and Servicing Agreement and the Trust Fund
created thereby (other than the obligation of the Trustee to provide for and
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the United States to
the Court of St. ▇▇▇▇▇, living on the date hereof.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to
be duly executed under this official seal.
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar under
the Pooling and Servicing Agreement.
By:
------------------------------------
AUTHORIZED REPRESENTATIVE
Dated: May 8, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1A CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
-----------------------------------
AUTHORIZED REPRESENTATIVE
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _______________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
__________________________________ account number _______________ or, if mailed
by check, to _______________________________________. Statements should be
mailed to _______________________________________________________________. This
information is provided by assignee named above, or ___________________________,
as its agent.
EXHIBIT A-7
GE COMMERCIAL MORTGAGE CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-C1, CLASS X-P
THE NOTIONAL AMOUNT ON WHICH THE INTEREST PAYABLE TO THE HOLDERS OF THE CLASS
X-P CERTIFICATES IS BASED WILL BE REDUCED AS A RESULT OF PRINCIPAL PAYMENTS AND
LOSSES ON THE MORTGAGE LOANS. ACCORDINGLY, THE INTEREST PAYABLE PURSUANT TO THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. THIS CERTIFICATE CONSTITUTES
A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
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 PASS-THROUGH RATE ON THE CLASS X-P CERTIFICATES APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF
WILL BE A VARIABLE RATE, WHICH WILL INITALLY BE AS OF THE MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND
THE CLOSING DATE 0.4285% AND THEREAFTER AS SET FORTH PREPAYMENTS RECEIVED ON OR BEFORE CUT-OFF DATE:
IN THE POOLING AND SERVICING AGREEMENT. $3,484,769,000
DENOMINATION: $[500,000,000] [500,000,000] MASTER SERVICERS: KEYCORP REAL ESTATE CAPITAL MARKETS,
[500,000,000] [500,000,000] [500,000,000] INC. AND BANK OF AMERICA, NATIONAL ASSOCIATION
[500,000,000] [500,000,000] [361,731,000]
SPECIAL SERVICER: LNR PARTNERS, INC.
DATE OF POOLING AND SERVICING AGREEMENT: AS OF
MAY 1, 2007 TRUSTEE: ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: WITH RESPECT TO EACH MORTGAGE LOAN,
THE LATER OF MAY 1, 2007 OR THE DATE OF ORIGINATION
OF SUCH MORTGAGE LOAN (OR, WITH RESPECT TO LOAN NOS. CUSIP NO. [____]
1 AND 16, MAY 5, 2007)
CERTIFICATE NO.: ▇-▇-▇ -▇ -▇ -▇ -▇-▇-▇-▇
▇▇▇▇▇▇▇ DATE: MAY 8, 2007
FIRST DISTRIBUTION DATE:
JUNE 11, 2007
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS X-P CERTIFICATES
AS OF THE CLOSING DATE: $3,861,731,000
CLASS X-P CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing fixed rate balloon
and fully amortizing mortgage loans (the "Mortgage Loans"), all payments on or
collections in respect of the Mortgage Loans due after the Cut-off Date, all REO
Properties and revenues received in respect thereof, the mortgagee's rights
under the Insurance Policies, any Assignment of Leases, and any guaranties,
escrow accounts or other collateral as security for the Mortgage Loans and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Account, the Interest Reserve Account, the Excess Interest
Distribution Account and the REO Accounts, formed and sold by
GE COMMERCIAL MORTGAGE CORPORATION
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GE
COMMERCIAL MORTGAGE CORPORATION, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class X-P Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of May 1, 2007 (the "Pooling and Servicing
Agreement"), among GE Commercial Mortgage Corporation (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Servicers and the Special Servicer. A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated
as Certificates of the series specified on the face hereof (herein called the
"Certificates") and representing the percentage interest in the Class of
Certificates specified on the face hereof. The Certificates are designated as
the GE Commercial Mortgage Corporation, Commercial Mortgage Pass-Through
Certificates, Series 2007-C1 and are issued in thirty classes as specifically
set forth in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee
shall distribute to the Person in whose name this Certificate is registered as
of the related Record Date, an amount equal to such Person's pro rata share
(based on the Percentage Interest represented by this Certificate) of that
portion of the aggregate amount of interest then distributable, if any,
allocable to the Class of Certificates of the same Class as this Certificate for
such Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate will not be entitled to distributions in
respect of principal. Holders of this Certificate may be entitled to Yield
Maintenance Charges as provided in the Pooling and Servicing Agreement. All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted
of 360 days and each month consisted of 30 days) during the Interest Accrual
Period relating to such Distribution Date at the Class X-P Pass-Through Rate
specified above on the Notional Amount of this Certificate immediately prior to
such Distribution Date. Interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the Available Distribution Amount to be distributed on the Certificates of
this Class as of such Distribution Date, with a final distribution to be made
upon retirement of this Certificate as set forth in the Pooling and Servicing
Agreement.
The Certificates are limited in right of payment to, among other things,
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Account will be held in the name of the Trustee, on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicers (with respect to the Certificate Account) or the Trustee (with respect
to the Distribution Account) will be authorized to make withdrawals therefrom.
Amounts on deposit in such accounts may be invested in Permitted Investments.
Interest or other income earned on funds (i) in the Certificate Account will be
paid to the Servicers and (ii) in the Distribution Account will be paid to the
Trustee as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account and
the Distribution Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class of
Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder has provided the Trustee with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity having appropriate facilities
therefor. The final distribution on this Certificate shall be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
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 Section 4.01(g) of the Pooling and Servicing Agreement shall
not have been surrendered for cancellation within six months after the time
specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders to surrender their Certificates for
cancellation in order to receive the final distribution with respect thereto. If
within one year after the second notice all such Certificates shall not have
been surrendered for cancellation, the Trustee, directly or through an agent,
shall take such steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it deems 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 under the Pooling and Servicing Agreement by the Trustee as
a result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with Section 4.01(g) of the Pooling and
Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register only upon surrender of this Certificate for
registration of transfer at the office of the Certificate Registrar, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney-in-fact duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized Denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class X-P
and the Class X-C Certificates will be issued in book-entry form through the
facilities of DTC in Denominations of not less than $1,000,000 initial Notional
Amount and in integral multiples of $1 in excess thereof, with one Certificate
of such Class evidencing an additional amount equal to the remainder of the
initial Notional Amount of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Offered Certificates will be issued in book-entry form
through the facilities of DTC in Denominations of not less than $10,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. Subject to the terms
of the Pooling and Servicing Agreement, the Non-Registered Certificates (other
than the Class X Certificates and Residual Certificates) will be issued in
book-entry form through the facilities of DTC in Denominations of not less than
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. The
Class R and Class LR Certificates will be issued in fully registered,
certificated form, in Denominations representing Percentage Interests of not
less than 20%.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) thereof. 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 in Section 5.02(b) of the Pooling and Servicing Agreement) incurred
by the Certificate Registrar in connection with such transfer. With respect to
any transfer or exchange of any Certificate, the Certificate Registrar may
require payment by each Transferor of a sum sufficient to cover any tax, expense
or other governmental charge payable in connection with any such transfer or
exchange.
The Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar and any of their agents may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
The Depositor, the Servicers, the Special Servicer, the Trustee, the Certificate
Registrar or any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time by the
Depositor, the Servicers, the Special Servicer and the Trustee, without the
consent of any of the Certificateholders or the holder of any Serviced Pari
Passu Loan or Serviced B Note: to cure any ambiguity; to cause the provisions
therein to conform or be consistent with or in furtherance of the statements
made with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement in the Private Placement Memorandum or the Prospectus or to correct or
supplement any provisions therein or in the Pooling and Servicing Agreement,
that may be inconsistent with any other provision therein or in the Pooling and
Servicing Agreement, or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of (i) the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC (ii) each Grantor Trust as a grantor trust (at all
times that any Certificate is outstanding) or (iii) any trust fund in which a
Serviced Pari Passu Loan or Serviced B Note is included as a REMIC (at all times
that any related securities are outstanding) or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC pursuant to the Code that would be a claim against the Trust
Fund, the Lower-Tier REMIC or the Upper-Tier REMIC; provided that, the Trustee
has received an Opinion of Counsel addressed to the parties to the Pooling and
Servicing Agreement (at the expense of the party requesting the amendment) to
the effect that (a) such action is necessary or desirable to maintain such
qualification or to avoid or minimize the risk of the imposition of any such tax
and (b) such action will not adversely affect in any material respect the
interests of any Certificateholder or any holder of a related Serviced Pari
Passu Loan or Serviced B Note; to change the timing and/or nature of deposits
into the Certificate Account, any Serviced Whole Loan Custodial Account, the
Distribution Account or REO Account or to change the name in which the
Certificate Account or the Serviced Whole Loan Custodial Account is maintained,
provided that (a) the P&I Advance Date shall in no event be later than the
related Distribution Date, (b) such change shall not, as evidenced by an Opinion
of Counsel addressed to the parties to the Pooling and Servicing Agreement (at
the expense of the party requesting the amendment), adversely affect in any
material respect the interests of any Certificateholder or any holder of a
related Serviced Pari Passu Loan or Serviced B Note and (c) such change shall
not result in the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates or any Class of Serviced Pari Passu
Loan Securities, as evidenced by a letter from each Rating Agency to such
effect; to modify, eliminate or add to the provisions of Section 5.02(d) of the
Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," provided that, such change shall not, as evidenced by an
Opinion of Counsel addressed to the parties to the Pooling and Servicing
Agreement, cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or
any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement or any other change, provided that, such action shall not adversely
affect in any material respect the interests of any Certificateholder or any
holder of a related Serviced Pari Passu Loan or Serviced B Note not consenting
thereto as evidenced by an Opinion of Counsel or by written confirmation from
the Rating Agencies to the effect that the change would not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or any Class of Serviced Pari Passu Loan Securities;
and to amend or supplement any provision in the Pooling and Servicing Agreement
to the extent necessary to maintain the rating or ratings assigned to each Class
of Certificates by each applicable Rating Agency and any other applicable rating
agency; provided that, such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or any Class of Serviced Pari Passu Loan Securities, as evidenced
by a letter from each applicable Rating Agency and any other applicable rating
agency to such effect.
The Pooling and Servicing Agreement may also be amended from time to time by
the Depositor, the Servicers, the Special Servicer and the Trustee with the
consent of the Holders of Certificates evidencing in the aggregate not less than
66 2/3% of the Percentage Interests of each Class of Certificates affected
thereby for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Pooling and Servicing Agreement or of
modifying in any manner the rights of the Holders of Certificates of such Class;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate, or which are required to be
distributed to the holder of any Serviced Pari Passu Loan or Serviced B
Note without the consent of such holder of any Serviced Pari Passu Loan or
Serviced B Note; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding or the voting rights of the holder of any
Serviced Pari Passu Loan or Serviced B Note without the consent of such
holder of any Serviced Pari Passu Loan or Serviced B Note; or
(iv) modify the definition of Servicing Standard without the consent
of the Holders of all Certificates then outstanding and the consent of the
holder of any related Serviced Pari Passu Loan or Serviced B Note; or
(v) amend Section 11.01 of the Pooling and Servicing Agreement.
No amendment shall be made to the Pooling and Servicing Agreement unless the
Trustee shall have received an Opinion of Counsel that such amendment is
permitted under the Pooling and Servicing Agreement and will not cause the
Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, each
Grantor Trust to fail to qualify as a grantor trust, cause any trust fund in
which a Serviced Pari Passu Loan or Serviced B Note is included as a REMIC to
fail to qualify as a REMIC or result in the imposition of a tax on the Trust
Fund, the Upper-Tier REMIC or the Lower-Tier REMIC.
The Sole Certificateholder will have the option, upon 60 days' prior notice
given to each of the parties to the Pooling and Servicing Agreement, which
notice the Trustee is required to promptly forward to Certificateholders and
Rating Agencies in the manner set forth in the Pooling and Servicing Agreement,
to exchange all of its Certificates (other than the Residual Certificates) for
all of the Mortgage Loans and each REO Property (or beneficial interest in the
Mortgaged Property under a Non-Serviced Mortgage Loan) remaining in the Trust
Fund, and thereby effect termination of the Trust Fund and early retirement of
the then outstanding Certificates, on any Distribution Date on which the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates is reduced
to zero.
If the Sole Certificateholder chooses not to exercise such right, or if the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates has not been
reduced to zero, the Servicers or the Special Servicer (in that order) will have
the option, upon 60 days' prior notice given to the Trustee and each of the
other parties to the Pooling and Servicing Agreement, which notice the Trustee
is required to promptly forward to Certificateholders and Rating Agencies in the
manner set forth in the Pooling and Servicing Agreement, to purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is less than 1% of
the aggregate Cut-off Date Principal Balance of all the Mortgage Loans.
Subject to Section 9.02 of the Pooling and Servicing Agreement, the
obligations created by the Pooling and Servicing Agreement and the Trust Fund
created thereby (other than the obligation of the Trustee to provide for and
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the United States to
the Court of St. ▇▇▇▇▇, living on the date hereof.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to
be duly executed under this official seal.
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar under
the Pooling and Servicing Agreement.
By:
------------------------------------
AUTHORIZED REPRESENTATIVE
Dated: May 8, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X-P CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
-----------------------------------
AUTHORIZED REPRESENTATIVE
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _______________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
DISTRIBUTIONS SHALL BE MADE, BY WIRE TRANSFER OR OTHERWISE, IN IMMEDIATELY
AVAILABLE FUNDS TO _________________________________ FOR THE ACCOUNT OF
__________________________________ ACCOUNT NUMBER _______________ OR, IF MAILED
BY CHECK, TO _______________________________________. STATEMENTS SHOULD BE
MAILED TO _______________________________________________________________. THIS
INFORMATION IS PROVIDED BY ASSIGNEE NAMED ABOVE, OR ___________________________,
AS ITS AGENT.
EXHIBIT A-8
GE COMMERCIAL MORTGAGE CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-C1, CLASS A-M
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
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 PASS-THROUGH RATE ON THE CLASS A-M CERTIFICATES APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF
WILL BE THE LESSER OF (i)5.6060% AND (ii)THE WEIGHTED THE MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND
AVERAGE NET MORTGAGE RATE FOR ANY DISTRIBUTION DATE. PREPAYMENTS RECEIVED ON OR BEFORE CUT-OFF DATE:
$3,953,465,462
DENOMINATION: $354,346,000
MASTER SERVICERS: KEYCORP REAL ESTATE CAPITAL MARKETS,
DATE OF POOLING AND SERVICING AGREEMENT: AS OF INC. AND BANK OF AMERICA, NATIONAL ASSOCIATION
MAY 1, 2007
SPECIAL SERVICER: LNR PARTNERS, INC.
CUT-OFF DATE: WITH RESPECT TO EACH MORTGAGE LOAN,
THE LATER OF MAY 1, 2007 OR THE DATE OF ORIGINATION TRUSTEE: ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
OF SUCH MORTGAGE LOAN (OR, WITH RESPECT TO LOAN NOS.
1 AND 16, MAY 5, 2007)
CLOSING DATE: MAY 8, 2007 CUSIP NO.: [_____]
FIRST DISTRIBUTION DATE: CERTIFICATE NO.: A-M-1
JUNE 11, 2007
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-M CERTIFICATES
AS OF THE CLOSING DATE: $354,346,000
CLASS A-M CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing fixed rate balloon
and fully amortizing mortgage loans (the "Mortgage Loans"), all payments on or
collections in respect of the Mortgage Loans due after the Cut-off Date, all REO
Properties and revenues received in respect thereof, the mortgagee's rights
under the Insurance Policies, any Assignment of Leases, and any guaranties,
escrow accounts or other collateral as security for the Mortgage Loans and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Account, the Interest Reserve Account, the Excess Interest
Distribution Account and the REO Accounts, formed and sold by
GE COMMERCIAL MORTGAGE CORPORATION
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GE
COMMERCIAL MORTGAGE CORPORATION, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-M Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of May 1, 2007 (the "Pooling and Servicing
Agreement"), among GE Commercial Mortgage Corporation (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Servicers and the Special Servicer. A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated
as Certificates of the series specified on the face hereof (herein called the
"Certificates") and representing an interest in the Class of Certificates
specified on the face hereof equal to the quotient expressed as a percentage
obtained by dividing the Denomination of this Certificate specified on the face
hereof, by the aggregate initial Certificate Balance of the Class A-M
Certificates. The Certificates are designated as the GE Commercial Mortgage
Corporation, Commercial Mortgage Pass-Through Certificates, Series 2007-C1 and
are issued in thirty classes as specifically set forth in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee
shall distribute to the Person in whose name this Certificate is registered as
of the related Record Date, an amount equal to such Person's pro rata share
(based on the Percentage Interest represented by this Certificate) of that
portion of the aggregate amount of principal and interest then distributable, if
any, allocable to the Class of Certificates of the same Class as this
Certificate for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted
of 360 days and each month consisted of 30 days) during the Interest Accrual
Period relating to such Distribution Date at the Class A-M Pass-Through Rate
specified above on the Certificate Balance of this Certificate immediately prior
to each Distribution Date. Principal and interest allocated to this Certificate
on any Distribution Date will be in an amount due to this Certificate's pro rata
share of the Available Distribution Amount to be distributed on the Certificates
of this Class as of such Distribution Date, with a final distribution to be made
upon retirement of this Certificate as set forth in the Pooling and Servicing
Agreement.
Any Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. Any Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other things,
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Account will be held in the name of the Trustee, on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicers (with respect to the Certificate Account) or the Trustee (with respect
to the Distribution Account) will be authorized to make withdrawals therefrom.
Amounts on deposit in such accounts may be invested in Permitted Investments.
Interest or other income earned on funds (i) in the Certificate Account will be
paid to the Servicers and (ii) in the Distribution Account will be paid to the
Trustee as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account and
the Distribution Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class of
Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder has provided the Trustee with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity having appropriate facilities
therefor. The final distribution on this Certificate shall be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
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 Section 4.01(g) of the Pooling and Servicing Agreement shall
not have been surrendered for cancellation within six months after the time
specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders to surrender their Certificates for
cancellation in order to receive the final distribution with respect thereto. If
within one year after the second notice all such Certificates shall not have
been surrendered for cancellation, the Trustee, directly or through an agent,
shall take such steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it deems 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 under the Pooling and Servicing Agreement by the Trustee as
a result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with Section 4.01(g) of the Pooling and
Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register only upon surrender of this Certificate for
registration of transfer at the office of the Certificate Registrar, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney-in-fact duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized Denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class X-P
and the Class X-C Certificates will be issued in book-entry form through the
facilities of DTC in Denominations of not less than $1,000,000 initial Notional
Amount and in integral multiples of $1 in excess thereof, with one Certificate
of such Class evidencing an additional amount equal to the remainder of the
initial Notional Amount of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Offered Certificates will be issued in book-entry form
through the facilities of DTC in Denominations of not less than $10,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. Subject to the terms
of the Pooling and Servicing Agreement, the Non-Registered Certificates (other
than the Class X Certicates and the Residual Certificates) will be issued in
book-entry form through the facilities of DTC in Denominations of not less than
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. The
Class R and Class LR Certificates will be issued in fully registered,
certificated form, in Denominations representing Percentage Interests of not
less than 20%.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) thereof. 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 in Section 5.02(b) of the Pooling and Servicing Agreement) incurred
by the Certificate Registrar in connection with such transfer. With respect to
any transfer or exchange of any Certificate, the Certificate Registrar may
require payment by each Transferor of a sum sufficient to cover any tax, expense
or other governmental charge payable in connection with any such transfer or
exchange.
The Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar and any of their agents may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
The Depositor, the Servicers, the Special Servicer, the Trustee, the Certificate
Registrar or any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time by the
Depositor, the Servicers, the Special Servicer and the Trustee, without the
consent of any of the Certificateholders or the holder of any Serviced Pari
Passu Loan or Serviced B Note: to cure any ambiguity; to cause the provisions
therein to conform or be consistent with or in furtherance of the statements
made with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement in the Private Placement Memorandum or the Prospectus or to correct or
supplement any provisions therein or in the Pooling and Servicing Agreement,
that may be inconsistent with any other provision therein or in the Pooling and
Servicing Agreement, or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of (i) the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC (ii) each Grantor Trust as a grantor trust (at all
times that any Certificate is outstanding) or (iii) any trust fund in which a
Serviced Pari Passu Loan or Serviced B Note is included as a REMIC (at all times
that any related securities are outstanding) or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC pursuant to the Code that would be a claim against the Trust
Fund, the Lower-Tier REMIC or the Upper-Tier REMIC; provided that, the Trustee
has received an Opinion of Counsel addressed to the parties to the Pooling and
Servicing Agreement (at the expense of the party requesting the amendment) to
the effect that (a) such action is necessary or desirable to maintain such
qualification or to avoid or minimize the risk of the imposition of any such tax
and (b) such action will not adversely affect in any material respect the
interests of any Certificateholder or any holder of a related Serviced Pari
Passu Loan or Serviced B Note; to change the timing and/or nature of deposits
into the Certificate Account, any Serviced Whole Loan Custodial Account, the
Distribution Account or REO Account or to change the name in which the
Certificate Account or the Serviced Whole Loan Custodial Account is maintained,
provided that (a) the P&I Advance Date shall in no event be later than the
related Distribution Date, (b) such change shall not, as evidenced by an Opinion
of Counsel addressed to the parties to the Pooling and Servicing Agreement (at
the expense of the party requesting the amendment), adversely affect in any
material respect the interests of any Certificateholder or any holder of a
related Serviced Pari Passu Loan or Serviced B Note and (c) such change shall
not result in the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates or any Class of Serviced Pari Passu
Loan Securities, as evidenced by a letter from each Rating Agency to such
effect; to modify, eliminate or add to the provisions of Section 5.02(d) of the
Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," provided that, such change shall not, as evidenced by an
Opinion of Counsel addressed to the parties to the Pooling and Servicing
Agreement, cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or
any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement or any other change, provided that, such action shall not adversely
affect in any material respect the interests of any Certificateholder or any
holder of a related Serviced Pari Passu Loan or Serviced B Note not consenting
thereto as evidenced by an Opinion of Counsel or by written confirmation from
the Rating Agencies to the effect that the change would not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or any Class of Serviced Pari Passu Loan Securities;
and to amend or supplement any provision in the Pooling and Servicing Agreement
to the extent necessary to maintain the rating or ratings assigned to each Class
of Certificates by each applicable Rating Agency and any other applicable rating
agency; provided that, such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or any Class of Serviced Pari Passu Loan Securities, as evidenced
by a letter from each applicable Rating Agency and any other applicable rating
agency to such effect.
The Pooling and Servicing Agreement may also be amended from time to time by
the Depositor, the Servicers, the Special Servicer and the Trustee with the
consent of the Holders of Certificates evidencing in the aggregate not less than
66 2/3% of the Percentage Interests of each Class of Certificates affected
thereby for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Pooling and Servicing Agreement or of
modifying in any manner the rights of the Holders of Certificates of such Class;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate, or which are required to be
distributed to the holder of any Serviced Pari Passu Loan or Serviced B
Note without the consent of such holder of any Serviced Pari Passu Loan or
Serviced B Note; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding or the voting rights of the holder of any
Serviced Pari Passu Loan or Serviced B Note without the consent of such
holder of any Serviced Pari Passu Loan or Serviced B Note; or
(iv) modify the definition of Servicing Standard without the consent
of the Holders of all Certificates then outstanding and the consent of the
holder of any related Serviced Pari Passu Loan or Serviced B Note; or
(v) amend Section 11.01 of the Pooling and Servicing Agreement.
No amendment shall be made to the Pooling and Servicing Agreement unless the
Trustee shall have received an Opinion of Counsel that such amendment is
permitted under the Pooling and Servicing Agreement and will not cause the
Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, each
Grantor Trust to fail to qualify as a grantor trust, cause any trust fund in
which a Serviced Pari Passu Loan or Serviced B Note is included as a REMIC to
fail to qualify as a REMIC or result in the imposition of a tax on the Trust
Fund, the Upper-Tier REMIC or the Lower-Tier REMIC.
The Sole Certificateholder will have the option, upon 60 days' prior notice
given to each of the parties to the Pooling and Servicing Agreement, which
notice the Trustee is required to promptly forward to Certificateholders and
Rating Agencies in the manner set forth in the Pooling and Servicing Agreement,
to exchange all of its Certificates (other than the Residual Certificates) for
all of the Mortgage Loans and each REO Property (or beneficial interest in the
Mortgaged Property under a Non-Serviced Mortgage Loan) remaining in the Trust
Fund, and thereby effect termination of the Trust Fund and early retirement of
the then outstanding Certificates, on any Distribution Date on which the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates is reduced
to zero.
If the Sole Certificateholder chooses not to exercise such right, or if the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates has not been
reduced to zero, the Servicers or the Special Servicer (in that order) will have
the option, upon 60 days' prior notice given to the Trustee and each of the
other parties to the Pooling and Servicing Agreement, which notice the Trustee
is required to promptly forward to Certificateholders and Rating Agencies in the
manner set forth in the Pooling and Servicing Agreement, to purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is less than 1% of
the aggregate Cut-off Date Principal Balance of all the Mortgage Loans.
Subject to Section 9.02 of the Pooling and Servicing Agreement, the
obligations created by the Pooling and Servicing Agreement and the Trust Fund
created thereby (other than the obligation of the Trustee to provide for and
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the United States to
the Court of St. ▇▇▇▇▇, living on the date hereof.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to
be duly executed under this official seal.
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar under
the Pooling and Servicing Agreement.
By:
------------------------------------
AUTHORIZED REPRESENTATIVE
Dated: May 8, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-M CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
-----------------------------------
AUTHORIZED REPRESENTATIVE
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _______________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
__________________________________ account number _______________ or, if mailed
by check, to _______________________________________. Statements should be
mailed to _______________________________________________________________. This
information is provided by assignee named above, or ___________________________,
as its agent.
EXHIBIT A-9
GE COMMERCIAL MORTGAGE CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-C1, CLASS A-J
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
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 PASS-THROUGH RATE ON THE CLASS A-J CERTIFICATES APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF
WILL BE THE LESSER OF (i) 5.6770% AND (ii) THE THE MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND
WEIGHTED AVERAGE NET MORTGAGE RATE FOR ANY PREPAYMENTS RECEIVED ON OR BEFORE CUT-OFF DATE:
DISTRIBUTION DATE $3,953,465,462
DENOMINATION: $239,453,000 MASTER SERVICERS: KEYCORP REAL ESTATE CAPITAL MARKETS,
INC. AND BANK OF AMERICA, NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF
MAY 1, 2007 SPECIAL SERVICER: LNR PARTNERS, INC.
CUT-OFF DATE: WITH RESPECT TO EACH MORTGAGE LOAN, TRUSTEE: ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
THE LATER OF MAY 1, 2007 OR THE DATE OF ORIGINATION
OF SUCH MORTGAGE LOAN (OR, WITH RESPECT TO LOAN NOS.
1 AND 16, MAY 5, 2007)
CUSIP NO.: [_____]
CLOSING DATE: MAY 8, 2007
CERTIFICATE NO.: A-J-1
FIRST DISTRIBUTION DATE:
JUNE 11, 2007
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-J CERTIFICATES
AS OF THE CLOSING DATE: $239,453,000
CLASS A-J CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing fixed rate balloon
and fully amortizing mortgage loans (the "Mortgage Loans"), all payments on or
collections in respect of the Mortgage Loans due after the Cut-off Date, all REO
Properties and revenues received in respect thereof, the mortgagee's rights
under the Insurance Policies, any Assignment of Leases, and any guaranties,
escrow accounts or other collateral as security for the Mortgage Loans and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Account, the Interest Reserve Account, the Excess Interest
Distribution Account and the REO Accounts, formed and sold by
GE COMMERCIAL MORTGAGE CORPORATION
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GE
COMMERCIAL MORTGAGE CORPORATION, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-J Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of May 1, 2007 (the "Pooling and Servicing
Agreement"), among GE Commercial Mortgage Corporation (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Servicers and the Special Servicer. A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated
as Certificates of the series specified on the face hereof (herein called the
"Certificates") and representing an interest in the Class of Certificates
specified on the face hereof equal to the quotient expressed as a percentage
obtained by dividing the Denomination of this Certificate specified on the face
hereof, by the aggregate initial Certificate Balance of the Class A-J
Certificates. The Certificates are designated as the GE Commercial Mortgage
Corporation, Commercial Mortgage Pass-Through Certificates, Series 2007-C1 and
are issued in thirty classes as specifically set forth in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee
shall distribute to the Person in whose name this Certificate is registered as
of the related Record Date, an amount equal to such Person's pro rata share
(based on the Percentage Interest represented by this Certificate) of that
portion of the aggregate amount of principal and interest then distributable, if
any, allocable to the Class of Certificates of the same Class as this
Certificate for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted
of 360 days and each month consisted of 30 days) during the Interest Accrual
Period relating to such Distribution Date at the Class A-J Pass-Through Rate
specified above on the Certificate Balance of this Certificate immediately prior
to each Distribution Date. Principal and interest allocated to this Certificate
on any Distribution Date will be in an amount due to this Certificate's pro rata
share of the Available Distribution Amount to be distributed on the Certificates
of this Class as of such Distribution Date, with a final distribution to be made
upon retirement of this Certificate as set forth in the Pooling and Servicing
Agreement.
Any Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. Any Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other things,
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Account will be held in the name of the Trustee, on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicers (with respect to the Certificate Account) or the Trustee (with respect
to the Distribution Account) will be authorized to make withdrawals therefrom.
Amounts on deposit in such accounts may be invested in Permitted Investments.
Interest or other income earned on funds (i) in the Certificate Account will be
paid to the Servicers and (ii) in the Distribution Account will be paid to the
Trustee as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account and
the Distribution Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class of
Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder has provided the Trustee with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity having appropriate facilities
therefor. The final distribution on this Certificate shall be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
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 Section 4.01(g) of the Pooling and Servicing Agreement shall
not have been surrendered for cancellation within six months after the time
specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders to surrender their Certificates for
cancellation in order to receive the final distribution with respect thereto. If
within one year after the second notice all such Certificates shall not have
been surrendered for cancellation, the Trustee, directly or through an agent,
shall take such steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it deems 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 under the Pooling and Servicing Agreement by the Trustee as
a result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with Section 4.01(g) of the Pooling and
Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register only upon surrender of this Certificate for
registration of transfer at the office of the Certificate Registrar, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney-in-fact duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized Denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class X-P
and the Class X-C Certificates will be issued in book-entry form through the
facilities of DTC in Denominations of not less than $1,000,000 initial Notional
Amount and in integral multiples of $1 in excess thereof, with one Certificate
of such Class evidencing an additional amount equal to the remainder of the
initial Notional Amount of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Offered Certificates will be issued in book-entry form
through the facilities of DTC in Denominations of not less than $10,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. Subject to the terms
of the Pooling and Servicing Agreement, the Non-Registered Certificates (other
than the Class X Certicates and the Residual Certificates) will be issued in
book-entry form through the facilities of DTC in Denominations of not less than
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. The
Class R and Class LR Certificates will be issued in fully registered,
certificated form, in Denominations representing Percentage Interests of not
less than 20%.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) thereof. 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 in Section 5.02(b) of the Pooling and Servicing Agreement) incurred
by the Certificate Registrar in connection with such transfer. With respect to
any transfer or exchange of any Certificate, the Certificate Registrar may
require payment by each Transferor of a sum sufficient to cover any tax, expense
or other governmental charge payable in connection with any such transfer or
exchange.
The Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar and any of their agents may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
The Depositor, the Servicers, the Special Servicer, the Trustee, the Certificate
Registrar or any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time by the
Depositor, the Servicers, the Special Servicer and the Trustee, without the
consent of any of the Certificateholders or the holder of any Serviced Pari
Passu Loan or Serviced B Note: to cure any ambiguity; to cause the provisions
therein to conform or be consistent with or in furtherance of the statements
made with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement in the Private Placement Memorandum or the Prospectus or to correct or
supplement any provisions therein or in the Pooling and Servicing Agreement,
that may be inconsistent with any other provision therein or in the Pooling and
Servicing Agreement, or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of (i) the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC (ii) each Grantor Trust as a grantor trust (at all
times that any Certificate is outstanding) or (iii) any trust fund in which a
Serviced Pari Passu Loan or Serviced B Note is included as a REMIC (at all times
that any related securities are outstanding) or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC pursuant to the Code that would be a claim against the Trust
Fund, the Lower-Tier REMIC or the Upper-Tier REMIC; provided that, the Trustee
has received an Opinion of Counsel addressed to the parties to the Pooling and
Servicing Agreement (at the expense of the party requesting the amendment) to
the effect that (a) such action is necessary or desirable to maintain such
qualification or to avoid or minimize the risk of the imposition of any such tax
and (b) such action will not adversely affect in any material respect the
interests of any Certificateholder or any holder of a related Serviced Pari
Passu Loan or Serviced B Note; to change the timing and/or nature of deposits
into the Certificate Account, any Serviced Whole Loan Custodial Account, the
Distribution Account or REO Account or to change the name in which the
Certificate Account or the Serviced Whole Loan Custodial Account is maintained,
provided that (a) the P&I Advance Date shall in no event be later than the
related Distribution Date, (b) such change shall not, as evidenced by an Opinion
of Counsel addressed to the parties to the Pooling and Servicing Agreement (at
the expense of the party requesting the amendment), adversely affect in any
material respect the interests of any Certificateholder or any holder of a
related Serviced Pari Passu Loan or Serviced B Note and (c) such change shall
not result in the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates or any Class of Serviced Pari Passu
Loan Securities, as evidenced by a letter from each Rating Agency to such
effect; to modify, eliminate or add to the provisions of Section 5.02(d) of the
Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," provided that, such change shall not, as evidenced by an
Opinion of Counsel addressed to the parties to the Pooling and Servicing
Agreement, cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or
any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement or any other change, provided that, such action shall not adversely
affect in any material respect the interests of any Certificateholder or any
holder of a related Serviced Pari Passu Loan or Serviced B Note not consenting
thereto as evidenced by an Opinion of Counsel or by written confirmation from
the Rating Agencies to the effect that the change would not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or any Class of Serviced Pari Passu Loan Securities;
and to amend or supplement any provision in the Pooling and Servicing Agreement
to the extent necessary to maintain the rating or ratings assigned to each Class
of Certificates by each applicable Rating Agency and any other applicable rating
agency; provided that, such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or any Class of Serviced Pari Passu Loan Securities, as evidenced
by a letter from each applicable Rating Agency and any other applicable rating
agency to such effect.
The Pooling and Servicing Agreement may also be amended from time to time by
the Depositor, the Servicers, the Special Servicer and the Trustee with the
consent of the Holders of Certificates evidencing in the aggregate not less than
66 2/3% of the Percentage Interests of each Class of Certificates affected
thereby for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Pooling and Servicing Agreement or of
modifying in any manner the rights of the Holders of Certificates of such Class;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate, or which are required to be
distributed to the holder of any Serviced Pari Passu Loan or Serviced B
Note without the consent of such holder of any Serviced Pari Passu Loan or
Serviced B Note; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding or the voting rights of the holder of any
Serviced Pari Passu Loan or Serviced B Note without the consent of such
holder of any Serviced Pari Passu Loan or Serviced B Note; or
(iv) modify the definition of Servicing Standard without the consent
of the Holders of all Certificates then outstanding and the consent of the
holder of any related Serviced Pari Passu Loan or Serviced B Note; or
(v) amend Section 11.01 of the Pooling and Servicing Agreement.
No amendment shall be made to the Pooling and Servicing Agreement unless the
Trustee shall have received an Opinion of Counsel that such amendment is
permitted under the Pooling and Servicing Agreement and will not cause the
Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, each
Grantor Trust to fail to qualify as a grantor trust, cause any trust fund in
which a Serviced Pari Passu Loan or Serviced B Note is included as a REMIC to
fail to qualify as a REMIC or result in the imposition of a tax on the Trust
Fund, the Upper-Tier REMIC or the Lower-Tier REMIC.
The Sole Certificateholder will have the option, upon 60 days' prior notice
given to each of the parties to the Pooling and Servicing Agreement, which
notice the Trustee is required to promptly forward to Certificateholders and
Rating Agencies in the manner set forth in the Pooling and Servicing Agreement,
to exchange all of its Certificates (other than the Residual Certificates) for
all of the Mortgage Loans and each REO Property (or beneficial interest in the
Mortgaged Property under a Non-Serviced Mortgage Loan) remaining in the Trust
Fund, and thereby effect termination of the Trust Fund and early retirement of
the then outstanding Certificates, on any Distribution Date on which the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates is reduced
to zero.
If the Sole Certificateholder chooses not to exercise such right, or if the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates has not been
reduced to zero, the Servicers or the Special Servicer (in that order) will have
the option, upon 60 days' prior notice given to the Trustee and each of the
other parties to the Pooling and Servicing Agreement, which notice the Trustee
is required to promptly forward to Certificateholders and Rating Agencies in the
manner set forth in the Pooling and Servicing Agreement, to purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is less than 1% of
the aggregate Cut-off Date Principal Balance of all the Mortgage Loans.
Subject to Section 9.02 of the Pooling and Servicing Agreement, the
obligations created by the Pooling and Servicing Agreement and the Trust Fund
created thereby (other than the obligation of the Trustee to provide for and
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the United States to
the Court of St. ▇▇▇▇▇, living on the date hereof.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to
be duly executed under this official seal.
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar under
the Pooling and Servicing Agreement.
By:
------------------------------------
AUTHORIZED REPRESENTATIVE
Dated: May 8, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-J CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
-----------------------------------
AUTHORIZED REPRESENTATIVE
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _______________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
__________________________________ account number _______________ or, if mailed
by check, to _______________________________________. Statements should be
mailed to _______________________________________________________________. This
information is provided by assignee named above, or ___________________________,
as its agent.
EXHIBIT A-10
GE COMMERCIAL MORTGAGE CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-C1, CLASS B
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
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 PASS-THROUGH RATE ON THE CLASS B CERTIFICATES APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF
WILL BE THE LESSER OF (i) 5.7460% (ii) THE WEIGHTED THE MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND
AVERAGE NET MORTGAGE RATE FOR ANY DISTRIBUTION DATE PREPAYMENTS RECEIVED ON OR BEFORE CUT-OFF DATE:
$3,953,465,462
DENOMINATION: $39,534,000
MASTER SERVICERS: KEYCORP REAL ESTATE CAPITAL MARKETS,
DATE OF POOLING AND SERVICING AGREEMENT: AS OF INC. AND BANK OF AMERICA, NATIONAL ASSOCIATION
MAY 1, 2007
SPECIAL SERVICER: LNR PARTNERS, INC.
CUT-OFF DATE: WITH RESPECT TO EACH MORTGAGE LOAN,
THE LATER OF MAY 1, 2007 OR THE DATE OF ORIGINATION TRUSTEE: ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
OF SUCH MORTGAGE LOAN (OR, WITH RESPECT TO LOAN NOS.
1 AND 16, MAY 5, 2007)
CLOSING DATE: MAY 8, 2007 CUSIP NO.: [____]
FIRST DISTRIBUTION DATE: CERTIFICATE NO.: B-1
JUNE 11, 2007
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS B CERTIFICATES
AS OF THE CLOSING DATE: $39,534,000
CLASS B CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing fixed rate balloon
and fully amortizing mortgage loans (the "Mortgage Loans"), all payments on or
collections in respect of the Mortgage Loans due after the Cut-off Date, all REO
Properties and revenues received in respect thereof, the mortgagee's rights
under the Insurance Policies, any Assignment of Leases, and any guaranties,
escrow accounts or other collateral as security for the Mortgage Loans and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Account, the Interest Reserve Account, the Excess Interest
Distribution Account and the REO Accounts, formed and sold by
GE COMMERCIAL MORTGAGE CORPORATION
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GE
COMMERCIAL MORTGAGE CORPORATION, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class B Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of May 1, 2007 (the "Pooling and Servicing
Agreement"), among GE Commercial Mortgage Corporation (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Servicers and the Special Servicer. A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated
as Certificates of the series specified on the face hereof (herein called the
"Certificates") and representing an interest in the Class of Certificates
specified on the face hereof equal to the quotient expressed as a percentage
obtained by dividing the Denomination of this Certificate specified on the face
hereof, by the aggregate initial Certificate Balance of the Class B
Certificates. The Certificates are designated as the GE Commercial Mortgage
Corporation, Commercial Mortgage Pass-Through Certificates, Series 2007-C1 and
are issued in thirty classes as specifically set forth in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee
shall distribute to the Person in whose name this Certificate is registered as
of the related Record Date, an amount equal to such Person's pro rata share
(based on the Percentage Interest represented by this Certificate) of that
portion of the aggregate amount of principal and interest then distributable, if
any, allocable to the Class of Certificates of the same Class as this
Certificate for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted
of 360 days and each month consisted of 30 days) during the Interest Accrual
Period relating to such Distribution Date at the Class B Pass-Through Rate
specified above on the Certificate Balance of this Certificate immediately prior
to each Distribution Date. Principal and interest allocated to this Certificate
on any Distribution Date will be in an amount due to this Certificate's pro rata
share of the Available Distribution Amount to be distributed on the Certificates
of this Class as of such Distribution Date, with a final distribution to be made
upon retirement of this Certificate as set forth in the Pooling and Servicing
Agreement.
Any Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. Any Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other things,
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Account will be held in the name of the Trustee, on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicers (with respect to the Certificate Account) or the Trustee (with respect
to the Distribution Account) will be authorized to make withdrawals therefrom.
Amounts on deposit in such accounts may be invested in Permitted Investments.
Interest or other income earned on funds (i) in the Certificate Account will be
paid to the Servicers and (ii) in the Distribution Account will be paid to the
Trustee as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account and
the Distribution Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class of
Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder has provided the Trustee with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity having appropriate facilities
therefor. The final distribution on this Certificate shall be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
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 Section 4.01(g) of the Pooling and Servicing Agreement shall
not have been surrendered for cancellation within six months after the time
specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders to surrender their Certificates for
cancellation in order to receive the final distribution with respect thereto. If
within one year after the second notice all such Certificates shall not have
been surrendered for cancellation, the Trustee, directly or through an agent,
shall take such steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it deems 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 under the Pooling and Servicing Agreement by the Trustee as
a result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with Section 4.01(g) of the Pooling and
Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register only upon surrender of this Certificate for
registration of transfer at the office of the Certificate Registrar, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney-in-fact duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized Denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class X-P
and the Class X-C Certificates will be issued in book-entry form through the
facilities of DTC in Denominations of not less than $1,000,000 initial Notional
Amount and in integral multiples of $1 in excess thereof, with one Certificate
of such Class evidencing an additional amount equal to the remainder of the
initial Notional Amount of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Offered Certificates will be issued in book-entry form
through the facilities of DTC in Denominations of not less than $10,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. Subject to the terms
of the Pooling and Servicing Agreement, the Non-Registered Certificates (other
than the Class X and the Residual Certificates) will be issued in book-entry
form through the facilities of DTC in Denominations of not less than $250,000
initial Certificate Balance, and in integral multiples of $1 in excess thereof,
with one Certificate of each such Class evidencing an additional amount equal to
the remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issued in fully registered, certificated form, in
Denominations representing Percentage Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) thereof. 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 in Section 5.02(b) of the Pooling and Servicing Agreement) incurred
by the Certificate Registrar in connection with such transfer. With respect to
any transfer or exchange of any Certificate, the Certificate Registrar may
require payment by each Transferor of a sum sufficient to cover any tax, expense
or other governmental charge payable in connection with any such transfer or
exchange.
The Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar and any of their agents may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
The Depositor, the Servicers, the Special Servicer, the Trustee, the Certificate
Registrar or any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time by the
Depositor, the Servicers, the Special Servicer and the Trustee, without the
consent of any of the Certificateholders or the holder of any Serviced Pari
Passu Loan or Serviced B Note: to cure any ambiguity; to cause the provisions
therein to conform or be consistent with or in furtherance of the statements
made with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement in the Private Placement Memorandum or the Prospectus or to correct or
supplement any provisions therein or in the Pooling and Servicing Agreement,
that may be inconsistent with any other provision therein or in the Pooling and
Servicing Agreement, or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of (i) the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC (ii) each Grantor Trust as a grantor trust (at all
times that any Certificate is outstanding) or (iii) any trust fund in which a
Serviced Pari Passu Loan or Serviced B Note is included as a REMIC (at all times
that any related securities are outstanding) or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC pursuant to the Code that would be a claim against the Trust
Fund, the Lower-Tier REMIC or the Upper-Tier REMIC; provided that, the Trustee
has received an Opinion of Counsel addressed to the parties to the Pooling and
Servicing Agreement (at the expense of the party requesting the amendment) to
the effect that (a) such action is necessary or desirable to maintain such
qualification or to avoid or minimize the risk of the imposition of any such tax
and (b) such action will not adversely affect in any material respect the
interests of any Certificateholder or any holder of a related Serviced Pari
Passu Loan or Serviced B Note; to change the timing and/or nature of deposits
into the Certificate Account, any Serviced Whole Loan Custodial Account, the
Distribution Account or REO Account or to change the name in which the
Certificate Account or the Serviced Whole Loan Custodial Account is maintained,
provided that (a) the P&I Advance Date shall in no event be later than the
related Distribution Date, (b) such change shall not, as evidenced by an Opinion
of Counsel addressed to the parties to the Pooling and Servicing Agreement (at
the expense of the party requesting the amendment), adversely affect in any
material respect the interests of any Certificateholder or any holder of a
related Serviced Pari Passu Loan or Serviced B Note and (c) such change shall
not result in the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates or any Class of Serviced Pari Passu
Loan Securities, as evidenced by a letter from each Rating Agency to such
effect; to modify, eliminate or add to the provisions of Section 5.02(d) of the
Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," provided that, such change shall not, as evidenced by an
Opinion of Counsel addressed to the parties to the Pooling and Servicing
Agreement, cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or
any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement or any other change, provided that, such action shall not adversely
affect in any material respect the interests of any Certificateholder or any
holder of a related Serviced Pari Passu Loan or Serviced B Note not consenting
thereto as evidenced by an Opinion of Counsel or by written confirmation from
the Rating Agencies to the effect that the change would not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or any Class of Serviced Pari Passu Loan Securities;
and to amend or supplement any provision in the Pooling and Servicing Agreement
to the extent necessary to maintain the rating or ratings assigned to each Class
of Certificates by each applicable Rating Agency and any other applicable rating
agency; provided that, such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or any Class of Serviced Pari Passu Loan Securities, as evidenced
by a letter from each applicable Rating Agency and any other applicable rating
agency to such effect.
The Pooling and Servicing Agreement may also be amended from time to time by
the Depositor, the Servicers, the Special Servicer and the Trustee with the
consent of the Holders of Certificates evidencing in the aggregate not less than
66 2/3% of the Percentage Interests of each Class of Certificates affected
thereby for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Pooling and Servicing Agreement or of
modifying in any manner the rights of the Holders of Certificates of such Class;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate, or which are required to be
distributed to the holder of any Serviced Pari Passu Loan or Serviced B
Note without the consent of such holder of any Serviced Pari Passu Loan or
Serviced B Note; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding or the voting rights of the holder of any
Serviced Pari Passu Loan or Serviced B Note without the consent of such
holder of any Serviced Pari Passu Loan or Serviced B Note; or
(iv) modify the definition of Servicing Standard without the consent
of the Holders of all Certificates then outstanding and the consent of the
holder of any related Serviced Pari Passu Loan or Serviced B Note; or
(v) amend Section 11.01 of the Pooling and Servicing Agreement.
No amendment shall be made to the Pooling and Servicing Agreement unless the
Trustee shall have received an Opinion of Counsel that such amendment is
permitted under the Pooling and Servicing Agreement and will not cause the
Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, each
Grantor Trust to fail to qualify as a grantor trust, cause any trust fund in
which a Serviced Pari Passu Loan or Serviced B Note is included as a REMIC to
fail to qualify as a REMIC or result in the imposition of a tax on the Trust
Fund, the Upper-Tier REMIC or the Lower-Tier REMIC.
The Sole Certificateholder will have the option, upon 60 days' prior notice
given to each of the parties to the Pooling and Servicing Agreement, which
notice the Trustee is required to promptly forward to Certificateholders and
Rating Agencies in the manner set forth in the Pooling and Servicing Agreement,
to exchange all of its Certificates (other than the Residual Certificates) for
all of the Mortgage Loans and each REO Property (or beneficial interest in the
Mortgaged Property under a Non-Serviced Mortgage Loan) remaining in the Trust
Fund, and thereby effect termination of the Trust Fund and early retirement of
the then outstanding Certificates, on any Distribution Date on which the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates is reduced
to zero.
If the Sole Certificateholder chooses not to exercise such right, or if the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates has not been
reduced to zero, the Servicers or the Special Servicer (in that order) will have
the option, upon 60 days' prior notice given to the Trustee and each of the
other parties to the Pooling and Servicing Agreement, which notice the Trustee
is required to promptly forward to Certificateholders and Rating Agencies in the
manner set forth in the Pooling and Servicing Agreement, to purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is less than 1% of
the aggregate Cut-off Date Principal Balance of all the Mortgage Loans.
Subject to Section 9.02 of the Pooling and Servicing Agreement, the
obligations created by the Pooling and Servicing Agreement and the Trust Fund
created thereby (other than the obligation of the Trustee to provide for and
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the United States to
the Court of St. ▇▇▇▇▇, living on the date hereof.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to
be duly executed under this official seal.
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar under
the Pooling and Servicing Agreement.
By:
------------------------------------
AUTHORIZED REPRESENTATIVE
Dated: May 8, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS B CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
-----------------------------------
AUTHORIZED REPRESENTATIVE
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _______________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
__________________________________ account number _______________ or, if mailed
by check, to _______________________________________. Statements should be
mailed to _______________________________________________________________. This
information is provided by assignee named above, or ___________________________,
as its agent.
EXHIBIT A-11
GE COMMERCIAL MORTGAGE CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-C1, CLASS C
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
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 PASS-THROUGH RATE ON THE CLASS C CERTIFICATES APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF
WILL BE (i) 5.8943% FOR THE INITIAL DISTRIBUTION DATE THE MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND
AND (ii) THE WEIGHTED AVERAGE NET MORTGAGE RATE FOR PREPAYMENTS RECEIVED ON OR BEFORE CUT-OFF DATE:
ANY DISTRIBUTION DATE MINUS 0.091% AFTER THE INITIAL $3,953,465,462
DISTRIBUTION DATE.
MASTER SERVICERS: KEYCORP REAL ESTATE CAPITAL MARKETS,
DENOMINATION: $44,477,000 INC. AND BANK OF AMERICA, NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SPECIAL SERVICER: LNR PARTNERS, INC.
MAY 1, 2007
TRUSTEE: ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: WITH RESPECT TO EACH MORTGAGE LOAN,
THE LATER OF MAY 1, 2007 OR THE DATE OF ORIGINATION
OF SUCH MORTGAGE LOAN (OR, WITH RESPECT TO LOAN NOS.
1 AND 16, MAY 5, 2007) CUSIP NO.: [___]
CLOSING DATE: MAY 8, 2007 CERTIFICATE NO.: C-1
FIRST DISTRIBUTION DATE:
JUNE 11, 2007
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS C CERTIFICATES
AS OF THE CLOSING DATE: $44,477,000
CLASS C CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing fixed rate balloon
and fully amortizing mortgage loans (the "Mortgage Loans"), all payments on or
collections in respect of the Mortgage Loans due after the Cut-off Date, all REO
Properties and revenues received in respect thereof, the mortgagee's rights
under the Insurance Policies, any Assignment of Leases, and any guaranties,
escrow accounts or other collateral as security for the Mortgage Loans and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Account, the Interest Reserve Account, the Excess Interest
Distribution Account and the REO Accounts, formed and sold by
GE COMMERCIAL MORTGAGE CORPORATION
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GE
COMMERCIAL MORTGAGE CORPORATION, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class C Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of May 1, 2007 (the "Pooling and Servicing
Agreement"), among GE Commercial Mortgage Corporation (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Servicers and the Special Servicer. A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated
as Certificates of the series specified on the face hereof (herein called the
"Certificates") and representing an interest in the Class of Certificates
specified on the face hereof equal to the quotient expressed as a percentage
obtained by dividing the Denomination of this Certificate specified on the face
hereof, by the aggregate initial Certificate Balance of the Class C
Certificates. The Certificates are designated as the GE Commercial Mortgage
Corporation, Commercial Mortgage Pass-Through Certificates, Series 2007-C1 and
are issued in thirty classes as specifically set forth in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee
shall distribute to the Person in whose name this Certificate is registered as
of the related Record Date, an amount equal to such Person's pro rata share
(based on the Percentage Interest represented by this Certificate) of that
portion of the aggregate amount of principal and interest then distributable, if
any, allocable to the Class of Certificates of the same Class as this
Certificate for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted
of 360 days and each month consisted of 30 days) during the Interest Accrual
Period relating to such Distribution Date at the Class C Pass-Through Rate
specified above on the Certificate Balance of this Certificate immediately prior
to each Distribution Date. Principal and interest allocated to this Certificate
on any Distribution Date will be in an amount due to this Certificate's pro rata
share of the Available Distribution Amount to be distributed on the Certificates
of this Class as of such Distribution Date, with a final distribution to be made
upon retirement of this Certificate as set forth in the Pooling and Servicing
Agreement.
Any Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. Any Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other things,
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Account will be held in the name of the Trustee, on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicers (with respect to the Certificate Account) or the Trustee (with respect
to the Distribution Account) will be authorized to make withdrawals therefrom.
Amounts on deposit in such accounts may be invested in Permitted Investments.
Interest or other income earned on funds (i) in the Certificate Account will be
paid to the Servicers and (ii) in the Distribution Account will be paid to the
Trustee as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account and
the Distribution Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class of
Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder has provided the Trustee with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity having appropriate facilities
therefor. The final distribution on this Certificate shall be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
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 Section 4.01(g) of the Pooling and Servicing Agreement shall
not have been surrendered for cancellation within six months after the time
specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders to surrender their Certificates for
cancellation in order to receive the final distribution with respect thereto. If
within one year after the second notice all such Certificates shall not have
been surrendered for cancellation, the Trustee, directly or through an agent,
shall take such steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it deems 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 under the Pooling and Servicing Agreement by the Trustee as
a result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with Section 4.01(g) of the Pooling and
Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register only upon surrender of this Certificate for
registration of transfer at the office of the Certificate Registrar, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney-in-fact duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized Denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class X-P
and the Class X-C Certificates will be issued in book-entry form through the
facilities of DTC in Denominations of not less than $1,000,000 initial Notional
Amount and in integral multiples of $1 in excess thereof, with one Certificate
of such Class evidencing an additional amount equal to the remainder of the
initial Notional Amount of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Offered Certificates will be issued in book-entry form
through the facilities of DTC in Denominations of not less than $10,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. Subject to the terms
of the Pooling and Servicing Agreement, the Non-Registered Certificates (other
than the Class X Certificates and the Residual Certificates) will be issued in
book-entry form through the facilities of DTC in Denominations of not less than
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. The
Class R and Class LR Certificates will be issued in fully registered,
certificated form, in Denominations representing Percentage Interests of not
less than 20%.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) thereof. 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 in Section 5.02(b) of the Pooling and Servicing Agreement) incurred
by the Certificate Registrar in connection with such transfer. With respect to
any transfer or exchange of any Certificate, the Certificate Registrar may
require payment by each Transferor of a sum sufficient to cover any tax, expense
or other governmental charge payable in connection with any such transfer or
exchange.
The Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar and any of their agents may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
The Depositor, the Servicers, the Special Servicer, the Trustee, the Certificate
Registrar or any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time by the
Depositor, the Servicers, the Special Servicer and the Trustee, without the
consent of any of the Certificateholders or the holder of any Serviced Pari
Passu Loan or Serviced B Note: to cure any ambiguity; to cause the provisions
therein to conform or be consistent with or in furtherance of the statements
made with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement in the Private Placement Memorandum or the Prospectus or to correct or
supplement any provisions therein or in the Pooling and Servicing Agreement,
that may be inconsistent with any other provision therein or in the Pooling and
Servicing Agreement, or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of (i) the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC (ii) each Grantor Trust as a grantor trust (at all
times that any Certificate is outstanding) or (iii) any trust fund in which a
Serviced Pari Passu Loan or Serviced B Note is included as a REMIC (at all times
that any related securities are outstanding) or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC pursuant to the Code that would be a claim against the Trust
Fund, the Lower-Tier REMIC or the Upper-Tier REMIC; provided that, the Trustee
has received an Opinion of Counsel addressed to the parties to the Pooling and
Servicing Agreement (at the expense of the party requesting the amendment) to
the effect that (a) such action is necessary or desirable to maintain such
qualification or to avoid or minimize the risk of the imposition of any such tax
and (b) such action will not adversely affect in any material respect the
interests of any Certificateholder or any holder of a related Serviced Pari
Passu Loan or Serviced B Note; to change the timing and/or nature of deposits
into the Certificate Account, any Serviced Whole Loan Custodial Account, the
Distribution Account or REO Account or to change the name in which the
Certificate Account or the Serviced Whole Loan Custodial Account is maintained,
provided that (a) the P&I Advance Date shall in no event be later than the
related Distribution Date, (b) such change shall not, as evidenced by an Opinion
of Counsel addressed to the parties to the Pooling and Servicing Agreement (at
the expense of the party requesting the amendment), adversely affect in any
material respect the interests of any Certificateholder or any holder of a
related Serviced Pari Passu Loan or Serviced B Note and (c) such change shall
not result in the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates or any Class of Serviced Pari Passu
Loan Securities, as evidenced by a letter from each Rating Agency to such
effect; to modify, eliminate or add to the provisions of Section 5.02(d) of the
Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," provided that, such change shall not, as evidenced by an
Opinion of Counsel addressed to the parties to the Pooling and Servicing
Agreement, cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or
any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement or any other change, provided that, such action shall not adversely
affect in any material respect the interests of any Certificateholder or any
holder of a related Serviced Pari Passu Loan or Serviced B Note not consenting
thereto as evidenced by an Opinion of Counsel or by written confirmation from
the Rating Agencies to the effect that the change would not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or any Class of Serviced Pari Passu Loan Securities;
and to amend or supplement any provision in the Pooling and Servicing Agreement
to the extent necessary to maintain the rating or ratings assigned to each Class
of Certificates by each applicable Rating Agency and any other applicable rating
agency; provided that, such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or any Class of Serviced Pari Passu Loan Securities, as evidenced
by a letter from each applicable Rating Agency and any other applicable rating
agency to such effect.
The Pooling and Servicing Agreement may also be amended from time to time by
the Depositor, the Servicers, the Special Servicer and the Trustee with the
consent of the Holders of Certificates evidencing in the aggregate not less than
66 2/3% of the Percentage Interests of each Class of Certificates affected
thereby for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Pooling and Servicing Agreement or of
modifying in any manner the rights of the Holders of Certificates of such Class;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate, or which are required to be
distributed to the holder of any Serviced Pari Passu Loan or Serviced B
Note without the consent of such holder of any Serviced Pari Passu Loan or
Serviced B Note; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding or the voting rights of the holder of any
Serviced Pari Passu Loan or Serviced B Note without the consent of such
holder of any Serviced Pari Passu Loan or Serviced B Note; or
(iv) modify the definition of Servicing Standard without the consent
of the Holders of all Certificates then outstanding and the consent of the
holder of any related Serviced Pari Passu Loan or Serviced B Note; or
(v) amend Section 11.01 of the Pooling and Servicing Agreement.
No amendment shall be made to the Pooling and Servicing Agreement unless the
Trustee shall have received an Opinion of Counsel that such amendment is
permitted under the Pooling and Servicing Agreement and will not cause the
Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, each
Grantor Trust to fail to qualify as a grantor trust, cause any trust fund in
which a Serviced Pari Passu Loan or Serviced B Note is included as a REMIC to
fail to qualify as a REMIC or result in the imposition of a tax on the Trust
Fund, the Upper-Tier REMIC or the Lower-Tier REMIC.
The Sole Certificateholder will have the option, upon 60 days' prior notice
given to each of the parties to the Pooling and Servicing Agreement, which
notice the Trustee is required to promptly forward to Certificateholders and
Rating Agencies in the manner set forth in the Pooling and Servicing Agreement,
to exchange all of its Certificates (other than the Residual Certificates) for
all of the Mortgage Loans and each REO Property (or beneficial interest in the
Mortgaged Property under a Non-Serviced Mortgage Loan) remaining in the Trust
Fund, and thereby effect termination of the Trust Fund and early retirement of
the then outstanding Certificates, on any Distribution Date on which the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates is reduced
to zero.
If the Sole Certificateholder chooses not to exercise such right, or if the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates has not been
reduced to zero, the Servicers or the Special Servicer (in that order) will have
the option, upon 60 days' prior notice given to the Trustee and each of the
other parties to the Pooling and Servicing Agreement, which notice the Trustee
is required to promptly forward to Certificateholders and Rating Agencies in the
manner set forth in the Pooling and Servicing Agreement, to purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is less than 1% of
the aggregate Cut-off Date Principal Balance of all the Mortgage Loans.
Subject to Section 9.02 of the Pooling and Servicing Agreement, the
obligations created by the Pooling and Servicing Agreement and the Trust Fund
created thereby (other than the obligation of the Trustee to provide for and
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the United States to
the Court of St. ▇▇▇▇▇, living on the date hereof.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to
be duly executed under this official seal.
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar under
the Pooling and Servicing Agreement.
By:
------------------------------------
AUTHORIZED REPRESENTATIVE
Dated: May 8, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS C CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
-----------------------------------
AUTHORIZED REPRESENTATIVE
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _______________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
__________________________________ account number _______________ or, if mailed
by check, to _______________________________________. Statements should be
mailed to _______________________________________________________________. This
information is provided by assignee named above, or ___________________________,
as its agent.
EXHIBIT A-12
GE COMMERCIAL MORTGAGE CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-C1, CLASS D
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
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 PASS-THROUGH RATE ON THE CLASS D CERTIFICATES APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF
WILL BE (i) 5.9333% FOR THE INITIAL DISTRIBUTION DATE THE MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND
AND (ii) THE WEIGHTED AVERAGE NET MORTGAGE RATE MINUS PREPAYMENTS RECEIVED ON OR BEFORE CUT-OFF DATE:
0.052% FOR ANY DISTRIBUTION DATE AFTER THE INITIAL $3,953,465,462
DISTRIBUTION DATE.
MASTER SERVICERS: KEYCORP REAL ESTATE CAPITAL MARKETS,
DENOMINATION: $39,534,000 INC. AND BANK OF AMERICA, NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SPECIAL SERVICER: LNR PARTNERS, INC.
MAY 1, 2007
TRUSTEE: ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: WITH RESPECT TO EACH MORTGAGE LOAN,
THE LATER OF MAY 1, 2007 OR THE DATE OF ORIGINATION
OF SUCH MORTGAGE LOAN (OR, WITH RESPECT TO LOAN NOS.
1 AND 16, MAY 5, 2007) CUSIP NO.: [___]
CLOSING DATE: MAY 8, 2007 CERTIFICATE NO.: D-1
FIRST DISTRIBUTION DATE:
JUNE 11, 2007
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS D CERTIFICATES
AS OF THE CLOSING DATE: $39,534,000
CLASS D CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing fixed rate balloon
and fully amortizing mortgage loans (the "Mortgage Loans"), all payments on or
collections in respect of the Mortgage Loans due after the Cut-off Date, all REO
Properties and revenues received in respect thereof, the mortgagee's rights
under the Insurance Policies, any Assignment of Leases, and any guaranties,
escrow accounts or other collateral as security for the Mortgage Loans and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Account, the Interest Reserve Account, the Excess Interest
Distribution Account and the REO Accounts, formed and sold by
GE COMMERCIAL MORTGAGE CORPORATION
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GE
COMMERCIAL MORTGAGE CORPORATION, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class D Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of May 1, 2007 (the "Pooling and Servicing
Agreement"), among GE Commercial Mortgage Corporation (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Servicers and the Special Servicer. A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated
as Certificates of the series specified on the face hereof (herein called the
"Certificates") and representing an interest in the Class of Certificates
specified on the face hereof equal to the quotient expressed as a percentage
obtained by dividing the Denomination of this Certificate specified on the face
hereof, by the aggregate initial Certificate Balance of the Class D
Certificates. The Certificates are designated as the GE Commercial Mortgage
Corporation, Commercial Mortgage Pass-Through Certificates, Series 2007-C1 and
are issued in thirty classes as specifically set forth in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee
shall distribute to the Person in whose name this Certificate is registered as
of the related Record Date, an amount equal to such Person's pro rata share
(based on the Percentage Interest represented by this Certificate) of that
portion of the aggregate amount of principal and interest then distributable, if
any, allocable to the Class of Certificates of the same Class as this
Certificate for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted
of 360 days and each month consisted of 30 days) during the Interest Accrual
Period relating to such Distribution Date at the Class D Pass-Through Rate
specified above on the Certificate Balance of this Certificate immediately prior
to each Distribution Date. Principal and interest allocated to this Certificate
on any Distribution Date will be in an amount due to this Certificate's pro rata
share of the Available Distribution Amount to be distributed on the Certificates
of this Class as of such Distribution Date, with a final distribution to be made
upon retirement of this Certificate as set forth in the Pooling and Servicing
Agreement.
Any Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. Any Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other things,
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Account will be held in the name of the Trustee, on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicers (with respect to the Certificate Account) or the Trustee (with respect
to the Distribution Account) will be authorized to make withdrawals therefrom.
Amounts on deposit in such accounts may be invested in Permitted Investments.
Interest or other income earned on funds (i) in the Certificate Account will be
paid to the Servicers and (ii) in the Distribution Account will be paid to the
Trustee as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account and
the Distribution Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class of
Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder has provided the Trustee with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity having appropriate facilities
therefor. The final distribution on this Certificate shall be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
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 Section 4.01(g) of the Pooling and Servicing Agreement shall
not have been surrendered for cancellation within six months after the time
specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders to surrender their Certificates for
cancellation in order to receive the final distribution with respect thereto. If
within one year after the second notice all such Certificates shall not have
been surrendered for cancellation, the Trustee, directly or through an agent,
shall take such steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it deems 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 under the Pooling and Servicing Agreement by the Trustee as
a result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with Section 4.01(g) of the Pooling and
Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register only upon surrender of this Certificate for
registration of transfer at the office of the Certificate Registrar, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney-in-fact duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized Denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class X-P
and the Class X-C Certificates will be issued in book-entry form through the
facilities of DTC in Denominations of not less than $1,000,000 initial Notional
Amount and in integral multiples of $1 in excess thereof, with one Certificate
of such Class evidencing an additional amount equal to the remainder of the
initial Notional Amount of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Offered Certificates will be issued in book-entry form
through the facilities of DTC in Denominations of not less than $10,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. Subject to the terms
of the Pooling and Servicing Agreement, the Non-Registered Certificates (other
than the Class X Certificates and the Residual Certificates) will be issued in
book-entry form through the facilities of DTC in Denominations of not less than
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. The
Class R and Class LR Certificates will be issued in fully registered,
certificated form, in Denominations representing Percentage Interests of not
less than 20%.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) thereof. 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 in Section 5.02(b) of the Pooling and Servicing Agreement) incurred
by the Certificate Registrar in connection with such transfer. With respect to
any transfer or exchange of any Certificate, the Certificate Registrar may
require payment by each Transferor of a sum sufficient to cover any tax, expense
or other governmental charge payable in connection with any such transfer or
exchange.
The Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar and any of their agents may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
The Depositor, the Servicers, the Special Servicer, the Trustee, the Certificate
Registrar or any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time by the
Depositor, the Servicers, the Special Servicer and the Trustee, without the
consent of any of the Certificateholders or the holder of any Serviced Pari
Passu Loan or Serviced B Note: to cure any ambiguity; to cause the provisions
therein to conform or be consistent with or in furtherance of the statements
made with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement in the Private Placement Memorandum or the Prospectus or to correct or
supplement any provisions therein or in the Pooling and Servicing Agreement,
that may be inconsistent with any other provision therein or in the Pooling and
Servicing Agreement, or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of (i) the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC (ii) each Grantor Trust as a grantor trust (at all
times that any Certificate is outstanding) or (iii) any trust fund in which a
Serviced Pari Passu Loan or Serviced B Note is included as a REMIC (at all times
that any related securities are outstanding) or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC pursuant to the Code that would be a claim against the Trust
Fund, the Lower-Tier REMIC or the Upper-Tier REMIC; provided that, the Trustee
has received an Opinion of Counsel addressed to the parties to the Pooling and
Servicing Agreement (at the expense of the party requesting the amendment) to
the effect that (a) such action is necessary or desirable to maintain such
qualification or to avoid or minimize the risk of the imposition of any such tax
and (b) such action will not adversely affect in any material respect the
interests of any Certificateholder or any holder of a related Serviced Pari
Passu Loan or Serviced B Note; to change the timing and/or nature of deposits
into the Certificate Account, any Serviced Whole Loan Custodial Account, the
Distribution Account or REO Account or to change the name in which the
Certificate Account or the Serviced Whole Loan Custodial Account is maintained,
provided that (a) the P&I Advance Date shall in no event be later than the
related Distribution Date, (b) such change shall not, as evidenced by an Opinion
of Counsel addressed to the parties to the Pooling and Servicing Agreement (at
the expense of the party requesting the amendment), adversely affect in any
material respect the interests of any Certificateholder or any holder of a
related Serviced Pari Passu Loan or Serviced B Note and (c) such change shall
not result in the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates or any Class of Serviced Pari Passu
Loan Securities, as evidenced by a letter from each Rating Agency to such
effect; to modify, eliminate or add to the provisions of Section 5.02(d) of the
Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," provided that, such change shall not, as evidenced by an
Opinion of Counsel addressed to the parties to the Pooling and Servicing
Agreement, cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or
any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement or any other change, provided that, such action shall not adversely
affect in any material respect the interests of any Certificateholder or any
holder of a related Serviced Pari Passu Loan or Serviced B Note not consenting
thereto as evidenced by an Opinion of Counsel or by written confirmation from
the Rating Agencies to the effect that the change would not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or any Class of Serviced Pari Passu Loan Securities;
and to amend or supplement any provision in the Pooling and Servicing Agreement
to the extent necessary to maintain the rating or ratings assigned to each Class
of Certificates by each applicable Rating Agency and any other applicable rating
agency; provided that, such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or any Class of Serviced Pari Passu Loan Securities, as evidenced
by a letter from each applicable Rating Agency and any other applicable rating
agency to such effect.
The Pooling and Servicing Agreement may also be amended from time to time by
the Depositor, the Servicers, the Special Servicer and the Trustee with the
consent of the Holders of Certificates evidencing in the aggregate not less than
66 2/3% of the Percentage Interests of each Class of Certificates affected
thereby for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Pooling and Servicing Agreement or of
modifying in any manner the rights of the Holders of Certificates of such Class;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate, or which are required to be
distributed to the holder of any Serviced Pari Passu Loan or Serviced B
Note without the consent of such holder of any Serviced Pari Passu Loan or
Serviced B Note; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding or the voting rights of the holder of any
Serviced Pari Passu Loan or Serviced B Note without the consent of such
holder of any Serviced Pari Passu Loan or Serviced B Note; or
(iv) modify the definition of Servicing Standard without the consent
of the Holders of all Certificates then outstanding and the consent of the
holder of any related Serviced Pari Passu Loan or Serviced B Note; or
(v) amend Section 11.01 of the Pooling and Servicing Agreement.
No amendment shall be made to the Pooling and Servicing Agreement unless the
Trustee shall have received an Opinion of Counsel that such amendment is
permitted under the Pooling and Servicing Agreement and will not cause the
Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, each
Grantor Trust to fail to qualify as a grantor trust, cause any trust fund in
which a Serviced Pari Passu Loan or Serviced B Note is included as a REMIC to
fail to qualify as a REMIC or result in the imposition of a tax on the Trust
Fund, the Upper-Tier REMIC or the Lower-Tier REMIC.
The Sole Certificateholder will have the option, upon 60 days' prior notice
given to each of the parties to the Pooling and Servicing Agreement, which
notice the Trustee is required to promptly forward to Certificateholders and
Rating Agencies in the manner set forth in the Pooling and Servicing Agreement,
to exchange all of its Certificates (other than the Residual Certificates) for
all of the Mortgage Loans and each REO Property (or beneficial interest in the
Mortgaged Property under a Non-Serviced Mortgage Loan) remaining in the Trust
Fund, and thereby effect termination of the Trust Fund and early retirement of
the then outstanding Certificates, on any Distribution Date on which the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates is reduced
to zero.
If the Sole Certificateholder chooses not to exercise such right, or if the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates has not been
reduced to zero, the Servicers or the Special Servicer (in that order) will have
the option, upon 60 days' prior notice given to the Trustee and each of the
other parties to the Pooling and Servicing Agreement, which notice the Trustee
is required to promptly forward to Certificateholders and Rating Agencies in the
manner set forth in the Pooling and Servicing Agreement, to purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is less than 1% of
the aggregate Cut-off Date Principal Balance of all the Mortgage Loans.
Subject to Section 9.02 of the Pooling and Servicing Agreement, the
obligations created by the Pooling and Servicing Agreement and the Trust Fund
created thereby (other than the obligation of the Trustee to provide for and
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the United States to
the Court of St. ▇▇▇▇▇, living on the date hereof.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to
be duly executed under this official seal.
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar under
the Pooling and Servicing Agreement.
By:
------------------------------------
AUTHORIZED REPRESENTATIVE
Dated: May 8, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS D CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
-----------------------------------
AUTHORIZED REPRESENTATIVE
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _______________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
DISTRIBUTIONS SHALL BE MADE, BY WIRE TRANSFER OR OTHERWISE, IN IMMEDIATELY
AVAILABLE FUNDS TO _________________________________ FOR THE ACCOUNT OF
__________________________________ ACCOUNT NUMBER _______________ OR, IF MAILED
BY CHECK, TO _______________________________________. STATEMENTS SHOULD BE
MAILED TO _______________________________________________________________. THIS
INFORMATION IS PROVIDED BY ASSIGNEE NAMED ABOVE, OR ___________________________,
AS ITS AGENT.
EXHIBIT A-13
GE COMMERCIAL MORTGAGE CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-C1, CLASS A-MFL
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
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 WHOM THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) (OTHER THAN WITH RESPECT TO A
RESIDUAL CERTIFICATE) 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, (D) (OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE OR AN
ERISA RESTRICTED CERTIFICATE (WITHOUT GIVING EFFECT TO CLAUSE (b)(ii) OF SUCH
DEFINITION)) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR
RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR (E) (OTHER THAN WITH
RESPECT TO A RESIDUAL CERTIFICATE) 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 REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
LAST TWO PAGES OF THIS CERTIFICATE.
THIS CLASS A-MFL CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN
OTHER CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
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 INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL
BUYER OR (OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE) AN INSTITUTIONAL
ACCREDITED INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL
IF SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A.
THE PASS-THROUGH RATE ON THIS CERTIFICATE IS BASED UPON LIBOR AND THEREFORE IS
SUBJECT TO CHANGE OVER TIME BASED UPON CHANGES IN THE RATE OF LIBOR. IN
ADDITION, THE PASS-THROUGH RATE ON THIS CLASS A-3FL CERTIFICATE MAY CONVERT TO A
FIXED PER ANNUM RATE UNDER CERTAIN CIRCUMSTANCES SET FORTH IN THE POOLING AND
SERVICING AGREEMENT.
THE PASS-THROUGH RATE ON THE CLASS A-M CERTIFICATES APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF
WILL BE LIBOR PLUS 0.23%. THE MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND
PREPAYMENTS RECEIVED ON OR BEFORE CUT-OFF DATE:
DENOMINATION: $41,000,000 $3,953,465,462
DATE OF POOLING AND SERVICING AGREEMENT: AS OF MASTER SERVICERS: KEYCORP REAL ESTATE CAPITAL MARKETS,
MAY 1, 2007 INC. AND BANK OF AMERICA, NATIONAL ASSOCIATION
CUT-OFF DATE: WITH RESPECT TO EACH MORTGAGE LOAN, SPECIAL SERVICER: LNR PARTNERS, INC.
THE LATER OF MAY 1, 2007 OR THE DATE OF ORIGINATION
OF SUCH MORTGAGE LOAN (OR, WITH RESPECT TO LOAN NOS. TRUSTEE: ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
1 AND 16, MAY 5, 2007)
CLOSING DATE: MAY 8, 2007
CUSIP NO.: [_____]
FIRST DISTRIBUTION DATE:
JUNE 11, 2007 CERTIFICATE NO.: A-MFL-1
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-MFL CERTIFICATES
AS OF THE CLOSING DATE: $41,000,000
CLASS A-MFL CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing fixed rate balloon
and fully amortizing mortgage loans (the "Mortgage Loans"), all payments on or
collections in respect of the Mortgage Loans due after the Cut-off Date, all REO
Properties and revenues received in respect thereof, the mortgagee's rights
under the Insurance Policies, any Assignment of Leases, and any guaranties,
escrow accounts or other collateral as security for the Mortgage Loans and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Account, the Interest Reserve Account, the Floating Rate Account,
the Excess Interest Distribution Account and the REO Accounts, formed and sold
by
GE COMMERCIAL MORTGAGE CORPORATION
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GE
COMMERCIAL MORTGAGE CORPORATION, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-MFL Certificates issued by the Trust Fund created pursuant to the
Pooling and Servicing Agreement, dated as of May 1, 2007 (the "Pooling and
Servicing Agreement"), among GE Commercial Mortgage Corporation (hereinafter
called the "Depositor", which term includes any successor entity under the
Pooling and Servicing Agreement), the Trustee, the Servicers and the Special
Servicer. A summary of certain of the pertinent provisions of the Pooling and
Servicing Agreement is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein shall have the meanings assigned thereto in
the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated
as Certificates of the series specified on the face hereof (herein called the
"Certificates") and representing an interest in the Class of Certificates
specified on the face hereof equal to the quotient expressed as a percentage
obtained by dividing the Denomination of this Certificate specified on the face
hereof, by the aggregate initial Certificate Balance of the Class A-M
Certificates. The Certificates are designated as the GE Commercial Mortgage
Corporation, Commercial Mortgage Pass-Through Certificates, Series 2007-C1 and
are issued in thirty classes as specifically set forth in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
This Certificate represents a "beneficial interest" in a portion of a grantor
trust under subpart E, Part I of subchapter J of the Internal Revenue Code of
1986, as amended, which portion consists of the Class A-MFL Re Interest, the
Swap Agreement and the Floating Rate Account. Each Holder of this Certificate,
by acceptance hereof, agrees to treat, and take no action inconsistent with the
treatment of, this Certificate in accordance with the preceding sentence for
purposes of federal income taxes, state and local income and franchise taxes and
other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee
shall distribute to the Person in whose name this Certificate is registered as
of the related Record Date, an amount equal to such Person's pro rata share
(based on the Percentage Interest represented by this Certificate) of that
portion of the aggregate amount of principal and interest then distributable, if
any, allocable to the Class of Certificates of the same Class as this
Certificate for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted
of 360 days and each month consisted of 30 days) during the Interest Accrual
Period relating to such Distribution Date at the Class A-MFL Pass-Through Rate
specified above on the Certificate Balance of this Certificate immediately prior
to each Distribution Date. Principal and interest allocated to this Certificate
on any Distribution Date will be in an amount due to this Certificate's pro rata
share of the Available Distribution Amount to be distributed on the Certificates
of this Class as of such Distribution Date, with a final distribution to be made
upon retirement of this Certificate as set forth in the Pooling and Servicing
Agreement. Distributions in respect of the Class A-MFL Certifcates may depend,
in part, on payments from the Swap Counterparty under the Swap Agreement as more
specifically set forth in the Pooling and Servicing Agreement.
Any Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. Any Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other things,
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, the Certificate Account, the Distribution
Account and the Floating Rate Account will be held in the name of the Trustee,
on behalf of the Holders of Certificates specified in the Pooling and Servicing
Agreement and the Servicers (with respect to the Certificate Account) or the
Trustee (with respect to the Distribution Account and the Floating Rate Account)
will be authorized to make withdrawals therefrom. Amounts on deposit in such
accounts may be invested in Permitted Investments. Interest or other income
earned on funds (i) in the Certificate Account will be paid to the Servicers and
(ii) in the Distribution Account will be paid to the Trustee as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account and the Distribution Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class of
Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder has provided the Trustee with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity having appropriate facilities
therefor. The final distribution on this Certificate shall be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
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 Section 4.01(g) of the Pooling and Servicing Agreement shall
not have been surrendered for cancellation within six months after the time
specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders to surrender their Certificates for
cancellation in order to receive the final distribution with respect thereto. If
within one year after the second notice all such Certificates shall not have
been surrendered for cancellation, the Trustee, directly or through an agent,
shall take such steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it deems 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 under the Pooling and Servicing Agreement by the Trustee as
a result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with Section 4.01(g) of the Pooling and
Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register only upon surrender of this Certificate for
registration of transfer at the office of the Certificate Registrar, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney-in-fact duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized Denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class X-P
and the Class X-C Certificates will be issued in book-entry form through the
facilities of DTC in Denominations of not less than $1,000,000 initial Notional
Amount and in integral multiples of $1 in excess thereof, with one Certificate
of such Class evidencing an additional amount equal to the remainder of the
initial Notional Amount of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Offered Certificates will be issued in book-entry form
through the facilities of DTC in Denominations of not less than $10,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. Subject to the terms
of the Pooling and Servicing Agreement, the Non-Registered Certificates (other
than the Class X Certicates and the Residual Certificates) will be issued in
book-entry form through the facilities of DTC in Denominations of not less than
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. The
Class R and Class LR Certificates will be issued in fully registered,
certificated form, in Denominations representing Percentage Interests of not
less than 20%.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) thereof. 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 in Section 5.02(b) of the Pooling and Servicing Agreement) incurred
by the Certificate Registrar in connection with such transfer. With respect to
any transfer or exchange of any Certificate, the Certificate Registrar may
require payment by each Transferor of a sum sufficient to cover any tax, expense
or other governmental charge payable in connection with any such transfer or
exchange.
The Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar and any of their agents may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
The Depositor, the Servicers, the Special Servicer, the Trustee, the Certificate
Registrar or any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time by the
Depositor, the Servicers, the Special Servicer and the Trustee, without the
consent of any of the Certificateholders or the holder of any Serviced Pari
Passu Loan or Serviced B Note: to cure any ambiguity; to cause the provisions
therein to conform or be consistent with or in furtherance of the statements
made with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement in the Private Placement Memorandum or the Prospectus or to correct or
supplement any provisions therein or in the Pooling and Servicing Agreement,
that may be inconsistent with any other provision therein or in the Pooling and
Servicing Agreement, or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of (i) the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC (ii) each Grantor Trust as a grantor trust (at all
times that any Certificate is outstanding) or (iii) any trust fund in which a
Serviced Pari Passu Loan or Serviced B Note is included as a REMIC (at all times
that any related securities are outstanding) or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC pursuant to the Code that would be a claim against the Trust
Fund, the Lower-Tier REMIC or the Upper-Tier REMIC; provided that, the Trustee
has received an Opinion of Counsel addressed to the parties to the Pooling and
Servicing Agreement (at the expense of the party requesting the amendment) to
the effect that (a) such action is necessary or desirable to maintain such
qualification or to avoid or minimize the risk of the imposition of any such tax
and (b) such action will not adversely affect in any material respect the
interests of any Certificateholder or any holder of a related Serviced Pari
Passu Loan or Serviced B Note; to change the timing and/or nature of deposits
into the Certificate Account, any Serviced Whole Loan Custodial Account, the
Distribution Account or REO Account or to change the name in which the
Certificate Account or the Serviced Whole Loan Custodial Account is maintained,
provided that (a) the P&I Advance Date shall in no event be later than the
related Distribution Date, (b) such change shall not, as evidenced by an Opinion
of Counsel addressed to the parties to the Pooling and Servicing Agreement (at
the expense of the party requesting the amendment), adversely affect in any
material respect the interests of any Certificateholder or any holder of a
related Serviced Pari Passu Loan or Serviced B Note and (c) such change shall
not result in the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates or any Class of Serviced Pari Passu
Loan Securities, as evidenced by a letter from each Rating Agency to such
effect; to modify, eliminate or add to the provisions of Section 5.02(d) of the
Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," provided that, such change shall not, as evidenced by an
Opinion of Counsel addressed to the parties to the Pooling and Servicing
Agreement, cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or
any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement or any other change, provided that, such action shall not adversely
affect in any material respect the interests of any Certificateholder or any
holder of a related Serviced Pari Passu Loan or Serviced B Note not consenting
thereto as evidenced by an Opinion of Counsel or by written confirmation from
the Rating Agencies to the effect that the change would not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or any Class of Serviced Pari Passu Loan Securities;
and to amend or supplement any provision in the Pooling and Servicing Agreement
to the extent necessary to maintain the rating or ratings assigned to each Class
of Certificates by each applicable Rating Agency and any other applicable rating
agency; provided that, such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or any Class of Serviced Pari Passu Loan Securities, as evidenced
by a letter from each applicable Rating Agency and any other applicable rating
agency to such effect.
The Pooling and Servicing Agreement may also be amended from time to time by
the Depositor, the Servicers, the Special Servicer and the Trustee with the
consent of the Holders of Certificates evidencing in the aggregate not less than
66 2/3% of the Percentage Interests of each Class of Certificates affected
thereby for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Pooling and Servicing Agreement or of
modifying in any manner the rights of the Holders of Certificates of such Class;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate, or which are required to be
distributed to the holder of any Serviced Pari Passu Loan or Serviced B
Note without the consent of such holder of any Serviced Pari Passu Loan or
Serviced B Note; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding or the voting rights of the holder of any
Serviced Pari Passu Loan or Serviced B Note without the consent of such
holder of any Serviced Pari Passu Loan or Serviced B Note; or
(iv) modify the definition of Servicing Standard without the consent
of the Holders of all Certificates then outstanding and the consent of the
holder of any related Serviced Pari Passu Loan or Serviced B Note; or
(v) amend Section 11.01 of the Pooling and Servicing Agreement.
No amendment shall be made to the Pooling and Servicing Agreement unless the
Trustee shall have received an Opinion of Counsel that such amendment is
permitted under the Pooling and Servicing Agreement and will not cause the
Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, each
Grantor Trust to fail to qualify as a grantor trust, cause any trust fund in
which a Serviced Pari Passu Loan or Serviced B Note is included as a REMIC to
fail to qualify as a REMIC or result in the imposition of a tax on the Trust
Fund, the Upper-Tier REMIC or the Lower-Tier REMIC.
The Sole Certificateholder will have the option, upon 60 days' prior notice
given to each of the parties to the Pooling and Servicing Agreement, which
notice the Trustee is required to promptly forward to Certificateholders and
Rating Agencies in the manner set forth in the Pooling and Servicing Agreement,
to exchange all of its Certificates (other than the Residual Certificates) for
all of the Mortgage Loans and each REO Property (or beneficial interest in the
Mortgaged Property under a Non-Serviced Mortgage Loan) remaining in the Trust
Fund, and thereby effect termination of the Trust Fund and early retirement of
the then outstanding Certificates, on any Distribution Date on which the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates is reduced
to zero.
If the Sole Certificateholder chooses not to exercise such right, or if the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates has not been
reduced to zero, the Servicers or the Special Servicer (in that order) will have
the option, upon 60 days' prior notice given to the Trustee and each of the
other parties to the Pooling and Servicing Agreement, which notice the Trustee
is required to promptly forward to Certificateholders and Rating Agencies in the
manner set forth in the Pooling and Servicing Agreement, to purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is less than 1% of
the aggregate Cut-off Date Principal Balance of all the Mortgage Loans.
Subject to Section 9.02 of the Pooling and Servicing Agreement, the
obligations created by the Pooling and Servicing Agreement and the Trust Fund
created thereby (other than the obligation of the Trustee to provide for and
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the United States to
the Court of St. ▇▇▇▇▇, living on the date hereof.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to
be duly executed under this official seal.
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar under
the Pooling and Servicing Agreement.
By:
------------------------------------
AUTHORIZED REPRESENTATIVE
Dated: May 8, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-MFL CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
-----------------------------------
AUTHORIZED REPRESENTATIVE
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _______________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
__________________________________ account number _______________ or, if mailed
by check, to _______________________________________. Statements should be
mailed to _______________________________________________________________. This
information is provided by assignee named above, or ___________________________,
as its agent.
EXHIBIT A-14
GE COMMERCIAL MORTGAGE CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-C1, CLASS A-JFL
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
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 WHOM THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) (OTHER THAN WITH RESPECT TO A
RESIDUAL CERTIFICATE) 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, (D) (OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE OR AN
ERISA RESTRICTED CERTIFICATE (WITHOUT GIVING EFFECT TO CLAUSE (b)(ii) OF SUCH
DEFINITION)) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR
RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR (E) (OTHER THAN WITH
RESPECT TO A RESIDUAL CERTIFICATE) 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 REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
LAST TWO PAGES OF THIS CERTIFICATE.
THIS CLASS A-JFL CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN
OTHER CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
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 INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL
BUYER OR (OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE) AN INSTITUTIONAL
ACCREDITED INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL
IF SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A.
THE PASS-THROUGH RATE ON THIS CERTIFICATE IS BASED UPON LIBOR AND THEREFORE IS
SUBJECT TO CHANGE OVER TIME BASED UPON CHANGES IN THE RATE OF LIBOR. IN
ADDITION, THE PASS-THROUGH RATE ON THIS CLASS A-3FL CERTIFICATE MAY CONVERT TO A
FIXED PER ANNUM RATE UNDER CERTAIN CIRCUMSTANCES SET FORTH IN THE POOLING AND
SERVICING AGREEMENT.
THE PASS-THROUGH RATE ON THE CLASS A-JFL CERTIFICATES APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF
WILL BE LIBOR PLUS 0.28%. THE MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND
PREPAYMENTS RECEIVED ON OR BEFORE CUT-OFF DATE:
DENOMINATION: $62,000,000 $3,953,465,462
DATE OF POOLING AND SERVICING AGREEMENT: AS OF MASTER SERVICERS: KEYCORP REAL ESTATE CAPITAL MARKETS,
MAY 1, 2007 INC. AND BANK OF AMERICA, NATIONAL ASSOCIATION
CUT-OFF DATE: WITH RESPECT TO EACH MORTGAGE LOAN, SPECIAL SERVICER: LNR PARTNERS, INC.
THE LATER OF MAY 1, 2007 OR THE DATE OF ORIGINATION
OF SUCH MORTGAGE LOAN (OR, WITH RESPECT TO LOAN NOS. TRUSTEE: ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
1 AND 16, MAY 5, 2007)
CLOSING DATE: MAY 8, 2007
CUSIP NO.: [_____]
FIRST DISTRIBUTION DATE:
JUNE 11, 2007 CERTIFICATE NO.: A-JFL-1
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-J CERTIFICATES
AS OF THE CLOSING DATE: $62,000,000
CLASS A-JFL CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing fixed rate balloon
and fully amortizing mortgage loans (the "Mortgage Loans"), all payments on or
collections in respect of the Mortgage Loans due after the Cut-off Date, all REO
Properties and revenues received in respect thereof, the mortgagee's rights
under the Insurance Policies, any Assignment of Leases, and any guaranties,
escrow accounts or other collateral as security for the Mortgage Loans and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Account, the Interest Reserve Account, the Floating Rate Account,
the Excess Interest Distribution Account and the REO Accounts, formed and sold
by
GE COMMERCIAL MORTGAGE CORPORATION
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GE
COMMERCIAL MORTGAGE CORPORATION, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-JFL Certificates issued by the Trust Fund created pursuant to the
Pooling and Servicing Agreement, dated as of May 1, 2007 (the "Pooling and
Servicing Agreement"), among GE Commercial Mortgage Corporation (hereinafter
called the "Depositor", which term includes any successor entity under the
Pooling and Servicing Agreement), the Trustee, the Servicers and the Special
Servicer. A summary of certain of the pertinent provisions of the Pooling and
Servicing Agreement is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein shall have the meanings assigned thereto in
the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated
as Certificates of the series specified on the face hereof (herein called the
"Certificates") and representing an interest in the Class of Certificates
specified on the face hereof equal to the quotient expressed as a percentage
obtained by dividing the Denomination of this Certificate specified on the face
hereof, by the aggregate initial Certificate Balance of the Class A-JFL
Certificates. The Certificates are designated as the GE Commercial Mortgage
Corporation, Commercial Mortgage Pass-Through Certificates, Series 2007-C1 and
are issued in thirty classes as specifically set forth in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
This Certificate represents a "beneficial interest" in a portion of a grantor
trust under subpart E, Part I of subchapter J of the Internal Revenue Code of
1986, as amended, which portion consists of the Class A-JFL Regular Interest,
the Swap Agreement and the Floating Rate Account. Each Holder of this
Certificate, by acceptance hereof, agrees to treat, and take no action
inconsistent with the treatment of, this Certificate in accordance with the
preceding sentence for purposes of federal income taxes, state and local income
and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee
shall distribute to the Person in whose name this Certificate is registered as
of the related Record Date, an amount equal to such Person's pro rata share
(based on the Percentage Interest represented by this Certificate) of that
portion of the aggregate amount of principal and interest then distributable, if
any, allocable to the Class of Certificates of the same Class as this
Certificate for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted
of 360 days and each month consisted of 30 days) during the Interest Accrual
Period relating to such Distribution Date at the Class A-JFL Pass-Through Rate
specified above on the Certificate Balance of this Certificate immediately prior
to each Distribution Date. Principal and interest allocated to this Certificate
on any Distribution Date will be in an amount due to this Certificate's pro rata
share of the Available Distribution Amount to be distributed on the Certificates
of this Class as of such Distribution Date, with a final distribution to be made
upon retirement of this Certificate as set forth in the Pooling and Servicing
Agreement. Distributions in respect of the Class A-JFL Certificates may depend,
in part, on payments from the Swap Counterparty under the Swap Agreement as more
specifically set forth in the Pooling and Servicing Agreement.
Any Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. Any Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other things,
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, the Certificate Account, the Distribution
Account and the Floating Rate Account will be held in the name of the Trustee,
on behalf of the Holders of Certificates specified in the Pooling and Servicing
Agreement and the Servicers (with respect to the Certificate Account) or the
Trustee (with respect to the Distribution Account and the Floating Rate Account)
will be authorized to make withdrawals therefrom. Amounts on deposit in such
accounts may be invested in Permitted Investments. Interest or other income
earned on funds (i) in the Certificate Account will be paid to the Servicers and
(ii) in the Distribution Account will be paid to the Trustee as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account and the Distribution Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class of
Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder has provided the Trustee with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity having appropriate facilities
therefor. The final distribution on this Certificate shall be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
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 Section 4.01(g) of the Pooling and Servicing Agreement shall
not have been surrendered for cancellation within six months after the time
specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders to surrender their Certificates for
cancellation in order to receive the final distribution with respect thereto. If
within one year after the second notice all such Certificates shall not have
been surrendered for cancellation, the Trustee, directly or through an agent,
shall take such steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it deems 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 under the Pooling and Servicing Agreement by the Trustee as
a result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with Section 4.01(g) of the Pooling and
Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register only upon surrender of this Certificate for
registration of transfer at the office of the Certificate Registrar, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney-in-fact duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized Denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class X-P
and the Class X-C Certificates will be issued in book-entry form through the
facilities of DTC in Denominations of not less than $1,000,000 initial Notional
Amount and in integral multiples of $1 in excess thereof, with one Certificate
of such Class evidencing an additional amount equal to the remainder of the
initial Notional Amount of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Offered Certificates will be issued in book-entry form
through the facilities of DTC in Denominations of not less than $10,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. Subject to the terms
of the Pooling and Servicing Agreement, the Non-Registered Certificates (other
than the Class X Certicates and the Residual Certificates) will be issued in
book-entry form through the facilities of DTC in Denominations of not less than
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. The
Class R and Class LR Certificates will be issued in fully registered,
certificated form, in Denominations representing Percentage Interests of not
less than 20%.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) thereof. 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 in Section 5.02(b) of the Pooling and Servicing Agreement) incurred
by the Certificate Registrar in connection with such transfer. With respect to
any transfer or exchange of any Certificate, the Certificate Registrar may
require payment by each Transferor of a sum sufficient to cover any tax, expense
or other governmental charge payable in connection with any such transfer or
exchange.
The Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar and any of their agents may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
The Depositor, the Servicers, the Special Servicer, the Trustee, the Certificate
Registrar or any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time by the
Depositor, the Servicers, the Special Servicer and the Trustee, without the
consent of any of the Certificateholders or the holder of any Serviced Pari
Passu Loan or Serviced B Note: to cure any ambiguity; to cause the provisions
therein to conform or be consistent with or in furtherance of the statements
made with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement in the Private Placement Memorandum or the Prospectus or to correct or
supplement any provisions therein or in the Pooling and Servicing Agreement,
that may be inconsistent with any other provision therein or in the Pooling and
Servicing Agreement, or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of (i) the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC (ii) each Grantor Trust as a grantor trust (at all
times that any Certificate is outstanding) or (iii) any trust fund in which a
Serviced Pari Passu Loan or Serviced B Note is included as a REMIC (at all times
that any related securities are outstanding) or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC pursuant to the Code that would be a claim against the Trust
Fund, the Lower-Tier REMIC or the Upper-Tier REMIC; provided that, the Trustee
has received an Opinion of Counsel addressed to the parties to the Pooling and
Servicing Agreement (at the expense of the party requesting the amendment) to
the effect that (a) such action is necessary or desirable to maintain such
qualification or to avoid or minimize the risk of the imposition of any such tax
and (b) such action will not adversely affect in any material respect the
interests of any Certificateholder or any holder of a related Serviced Pari
Passu Loan or Serviced B Note; to change the timing and/or nature of deposits
into the Certificate Account, any Serviced Whole Loan Custodial Account, the
Distribution Account or REO Account or to change the name in which the
Certificate Account or the Serviced Whole Loan Custodial Account is maintained,
provided that (a) the P&I Advance Date shall in no event be later than the
related Distribution Date, (b) such change shall not, as evidenced by an Opinion
of Counsel addressed to the parties to the Pooling and Servicing Agreement (at
the expense of the party requesting the amendment), adversely affect in any
material respect the interests of any Certificateholder or any holder of a
related Serviced Pari Passu Loan or Serviced B Note and (c) such change shall
not result in the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates or any Class of Serviced Pari Passu
Loan Securities, as evidenced by a letter from each Rating Agency to such
effect; to modify, eliminate or add to the provisions of Section 5.02(d) of the
Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," provided that, such change shall not, as evidenced by an
Opinion of Counsel addressed to the parties to the Pooling and Servicing
Agreement, cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or
any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement or any other change, provided that, such action shall not adversely
affect in any material respect the interests of any Certificateholder or any
holder of a related Serviced Pari Passu Loan or Serviced B Note not consenting
thereto as evidenced by an Opinion of Counsel or by written confirmation from
the Rating Agencies to the effect that the change would not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or any Class of Serviced Pari Passu Loan Securities;
and to amend or supplement any provision in the Pooling and Servicing Agreement
to the extent necessary to maintain the rating or ratings assigned to each Class
of Certificates by each applicable Rating Agency and any other applicable rating
agency; provided that, such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or any Class of Serviced Pari Passu Loan Securities, as evidenced
by a letter from each applicable Rating Agency and any other applicable rating
agency to such effect.
The Pooling and Servicing Agreement may also be amended from time to time by
the Depositor, the Servicers, the Special Servicer and the Trustee with the
consent of the Holders of Certificates evidencing in the aggregate not less than
66 2/3% of the Percentage Interests of each Class of Certificates affected
thereby for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Pooling and Servicing Agreement or of
modifying in any manner the rights of the Holders of Certificates of such Class;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate, or which are required to be
distributed to the holder of any Serviced Pari Passu Loan or Serviced B
Note without the consent of such holder of any Serviced Pari Passu Loan or
Serviced B Note; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding or the voting rights of the holder of any
Serviced Pari Passu Loan or Serviced B Note without the consent of such
holder of any Serviced Pari Passu Loan or Serviced B Note; or
(iv) modify the definition of Servicing Standard without the consent
of the Holders of all Certificates then outstanding and the consent of the
holder of any related Serviced Pari Passu Loan or Serviced B Note; or
(v) amend Section 11.01 of the Pooling and Servicing Agreement.
No amendment shall be made to the Pooling and Servicing Agreement unless the
Trustee shall have received an Opinion of Counsel that such amendment is
permitted under the Pooling and Servicing Agreement and will not cause the
Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, each
Grantor Trust to fail to qualify as a grantor trust, cause any trust fund in
which a Serviced Pari Passu Loan or Serviced B Note is included as a REMIC to
fail to qualify as a REMIC or result in the imposition of a tax on the Trust
Fund, the Upper-Tier REMIC or the Lower-Tier REMIC.
The Sole Certificateholder will have the option, upon 60 days' prior notice
given to each of the parties to the Pooling and Servicing Agreement, which
notice the Trustee is required to promptly forward to Certificateholders and
Rating Agencies in the manner set forth in the Pooling and Servicing Agreement,
to exchange all of its Certificates (other than the Residual Certificates) for
all of the Mortgage Loans and each REO Property (or beneficial interest in the
Mortgaged Property under a Non-Serviced Mortgage Loan) remaining in the Trust
Fund, and thereby effect termination of the Trust Fund and early retirement of
the then outstanding Certificates, on any Distribution Date on which the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates is reduced
to zero.
If the Sole Certificateholder chooses not to exercise such right, or if the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates has not been
reduced to zero, the Servicers or the Special Servicer (in that order) will have
the option, upon 60 days' prior notice given to the Trustee and each of the
other parties to the Pooling and Servicing Agreement, which notice the Trustee
is required to promptly forward to Certificateholders and Rating Agencies in the
manner set forth in the Pooling and Servicing Agreement, to purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is less than 1% of
the aggregate Cut-off Date Principal Balance of all the Mortgage Loans.
Subject to Section 9.02 of the Pooling and Servicing Agreement, the
obligations created by the Pooling and Servicing Agreement and the Trust Fund
created thereby (other than the obligation of the Trustee to provide for and
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the United States to
the Court of St. ▇▇▇▇▇, living on the date hereof.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to
be duly executed under this official seal.
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar under
the Pooling and Servicing Agreement.
By:
------------------------------------
AUTHORIZED REPRESENTATIVE
Dated: May 8, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-JFL CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
-----------------------------------
AUTHORIZED REPRESENTATIVE
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _______________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
__________________________________ account number _______________ or, if mailed
by check, to _______________________________________. Statements should be
mailed to _______________________________________________________________. This
information is provided by assignee named above, or ___________________________,
as its agent.
EXHIBIT A-15
GE COMMERCIAL MORTGAGE CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-C1, CLASS E
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
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 WHOM THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) (OTHER THAN WITH RESPECT TO A
RESIDUAL CERTIFICATE) 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, (D) (OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE OR AN
ERISA RESTRICTED CERTIFICATE (WITHOUT GIVING EFFECT TO CLAUSE (b)(ii) OF SUCH
DEFINITION)) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR
RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR (E) (OTHER THAN WITH
RESPECT TO A RESIDUAL CERTIFICATE) 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 REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
LAST TWO PAGES OF THIS CERTIFICATE.
THIS CLASS E CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
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 INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL
BUYER OR (OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE) AN INSTITUTIONAL
ACCREDITED INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL
IF SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A.
THE PASS-THROUGH RATE ON THE CLASS E CERTIFICATES APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF
WILL BE: (i) 5.9853% FOR THE INITIAL DISTRIBUTION THE MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND
DATE AND (ii) THE WEIGHTED AVERAGE NET MORTGAGE RATE PREPAYMENTS RECEIVED ON OR BEFORE CUT-OFF DATE:
FOR ANY DISTRIBUTION DATE AFTER THE INITIAL $3,953,465,462
DISTRIBUTION DATE
MASTER SERVICERS: KEYCORP REAL ESTATE CAPITAL MARKETS,
DENOMINATION: $29,651,000 INC. AND BANK OF AMERICA, NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SPECIAL SERVICER: LNR PARTNERS, INC.
MAY 1, 2007
TRUSTEE: ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: WITH RESPECT TO EACH MORTGAGE LOAN,
THE LATER OF MAY 1, 2007 OR THE DATE OF ORIGINATION
OF SUCH MORTGAGE LOAN (OR, WITH RESPECT TO LOAN NOS.
1 AND 16, MAY 5, 2007) CUSIP NO.: [_____]
CLOSING DATE: MAY 8, 2007 ISIN NO.: [_____]
FIRST DISTRIBUTION DATE: CERTIFICATE NO.: E-1
JUNE 11, 2007
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS E CERTIFICATES
AS OF THE CLOSING DATE: $29,651,000
CLASS E CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing fixed rate balloon
and fully amortizing mortgage loans (the "Mortgage Loans"), all payments on or
collections in respect of the Mortgage Loans due after the Cut-off Date, all REO
Properties and revenues received in respect thereof, the mortgagee's rights
under the Insurance Policies, any Assignment of Leases, and any guaranties,
escrow accounts or other collateral as security for the Mortgage Loans and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Account, the Interest Reserve Account, the Excess Interest
Distribution Account and the REO Accounts, formed and sold by
GE COMMERCIAL MORTGAGE CORPORATION
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GE
COMMERCIAL MORTGAGE CORPORATION, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class E Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of May 1, 2007 (the "Pooling and Servicing
Agreement"), among GE Commercial Mortgage Corporation (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Servicers and the Special Servicer. A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated
as Certificates of the series specified on the face hereof (herein called the
"Certificates") and representing an interest in the Class of Certificates
specified on the face hereof equal to the quotient expressed as a percentage
obtained by dividing the Denomination of this Certificate specified on the face
hereof, by the aggregate initial Certificate Balance of the Class E
Certificates. The Certificates are designated as the GE Commercial Mortgage
Corporation, Commercial Mortgage Pass-Through Certificates, Series 2007-C1 and
are issued in thirty classes as specifically set forth in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee
shall distribute to the Person in whose name this Certificate is registered as
of the related Record Date, an amount equal to such Person's pro rata share
(based on the Percentage Interest represented by this Certificate) of that
portion of the aggregate amount of principal and interest then distributable, if
any, allocable to the Class of Certificates of the same Class as this
Certificate for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted
of 360 days and each month consisted of 30 days) during the Interest Accrual
Period relating to such Distribution Date at the Class E Pass-Through Rate
specified above on the Certificate Balance of this Certificate immediately prior
to each Distribution Date. Principal and interest allocated to this Certificate
on any Distribution Date will be in an amount due to this Certificate's pro rata
share of the Available Distribution Amount to be distributed on the Certificates
of this Class as of such Distribution Date, with a final distribution to be made
upon retirement of this Certificate as set forth in the Pooling and Servicing
Agreement.
Any Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. Any Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other things,
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Account will be held in the name of the Trustee, on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicers (with respect to the Certificate Account) or the Trustee (with respect
to the Distribution Account) will be authorized to make withdrawals therefrom.
Amounts on deposit in such accounts may be invested in Permitted Investments.
Interest or other income earned on funds (i) in the Certificate Account will be
paid to the Servicers and (ii) in the Distribution Account will be paid to the
Trustee as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account and
the Distribution Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class of
Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder has provided the Trustee with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity having appropriate facilities
therefor. The final distribution on this Certificate shall be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
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 Section 4.01(g) of the Pooling and Servicing Agreement shall
not have been surrendered for cancellation within six months after the time
specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders to surrender their Certificates for
cancellation in order to receive the final distribution with respect thereto. If
within one year after the second notice all such Certificates shall not have
been surrendered for cancellation, the Trustee, directly or through an agent,
shall take such steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it deems 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 under the Pooling and Servicing Agreement by the Trustee as
a result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with Section 4.01(g) of the Pooling and
Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register only upon surrender of this Certificate for
registration of transfer at the office of the Certificate Registrar, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney-in-fact duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized Denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class X-P
and Class X-C Certificates will be issued in book-entry form through the
facilities of DTC in Denominations of not less than $1,000,000 initial Notional
Amount and in integral multiples of $1 in excess thereof, with one Certificate
of such Class evidencing an additional amount equal to the remainder of the
initial Notional Amount of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Offered Certificates will be issued in book-entry form
through the facilities of DTC in Denominations of not less than $10,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. Subject to the terms
of the Pooling and Servicing Agreement, the Non-Registered Certificates (other
than the Class X Certificates and the Residual Certificates) will be issued in
book-entry form through the facilities of DTC in Denominations of not less than
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. The
Class R and Class LR Certificates will be issued in fully registered,
certificated form, in Denominations representing Percentage Interests of not
less than 20%.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) thereof. 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 in Section 5.02(b) of the Pooling and Servicing Agreement) incurred
by the Certificate Registrar in connection with such transfer. With respect to
any transfer or exchange of any Certificate, the Certificate Registrar may
require payment by each Transferor of a sum sufficient to cover any tax, expense
or other governmental charge payable in connection with any such transfer or
exchange.
The Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar and any of their agents may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
The Depositor, the Servicers, the Special Servicer, the Trustee, the Certificate
Registrar or any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time by the
Depositor, the Servicers, the Special Servicer and the Trustee, without the
consent of any of the Certificateholders or the holder of any Serviced Pari
Passu Loan or Serviced B Note: to cure any ambiguity; to cause the provisions
therein to conform or be consistent with or in furtherance of the statements
made with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement in the Private Placement Memorandum or the Prospectus or to correct or
supplement any provisions therein or in the Pooling and Servicing Agreement,
that may be inconsistent with any other provision therein or in the Pooling and
Servicing Agreement, or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of (i) the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC (ii) each Grantor Trust as a grantor trust (at all
times that any Certificate is outstanding) or (iii) any trust fund in which a
Serviced Pari Passu Loan or Serviced B Note is included as a REMIC (at all times
that any related securities are outstanding) or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC pursuant to the Code that would be a claim against the Trust
Fund, the Lower-Tier REMIC or the Upper-Tier REMIC; provided that, the Trustee
has received an Opinion of Counsel addressed to the parties to the Pooling and
Servicing Agreement (at the expense of the party requesting the amendment) to
the effect that (a) such action is necessary or desirable to maintain such
qualification or to avoid or minimize the risk of the imposition of any such tax
and (b) such action will not adversely affect in any material respect the
interests of any Certificateholder or any holder of a related Serviced Pari
Passu Loan or Serviced B Note; to change the timing and/or nature of deposits
into the Certificate Account, any Serviced Whole Loan Custodial Account, the
Distribution Account or REO Account or to change the name in which the
Certificate Account or the Serviced Whole Loan Custodial Account is maintained,
provided that (a) the P&I Advance Date shall in no event be later than the
related Distribution Date, (b) such change shall not, as evidenced by an Opinion
of Counsel addressed to the parties to the Pooling and Servicing Agreement (at
the expense of the party requesting the amendment), adversely affect in any
material respect the interests of any Certificateholder or any holder of a
related Serviced Pari Passu Loan or Serviced B Note and (c) such change shall
not result in the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates or any Class of Serviced Pari Passu
Loan Securities, as evidenced by a letter from each Rating Agency to such
effect; to modify, eliminate or add to the provisions of Section 5.02(d) of the
Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," provided that, such change shall not, as evidenced by an
Opinion of Counsel addressed to the parties to the Pooling and Servicing
Agreement, cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or
any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement or any other change, provided that, such action shall not adversely
affect in any material respect the interests of any Certificateholder or any
holder of a related Serviced Pari Passu Loan or Serviced B Note not consenting
thereto as evidenced by an Opinion of Counsel or by written confirmation from
the Rating Agencies to the effect that the change would not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or any Class of Serviced Pari Passu Loan Securities;
and to amend or supplement any provision in the Pooling and Servicing Agreement
to the extent necessary to maintain the rating or ratings assigned to each Class
of Certificates by each applicable Rating Agency and any other applicable rating
agency; provided that, such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or any Class of Serviced Pari Passu Loan Securities, as evidenced
by a letter from each applicable Rating Agency and any other applicable rating
agency to such effect.
The Pooling and Servicing Agreement may also be amended from time to time by
the Depositor, the Servicers, the Special Servicer and the Trustee with the
consent of the Holders of Certificates evidencing in the aggregate not less than
66 2/3% of the Percentage Interests of each Class of Certificates affected
thereby for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Pooling and Servicing Agreement or of
modifying in any manner the rights of the Holders of Certificates of such Class;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate, or which are required to be
distributed to the holder of any Serviced Pari Passu Loan or Serviced B
Note without the consent of such holder of any Serviced Pari Passu Loan or
Serviced B Note; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding or the voting rights of the holder of any
Serviced Pari Passu Loan or Serviced B Note without the consent of such
holder of any Serviced Pari Passu Loan or Serviced B Note; or
(iv) modify the definition of Servicing Standard without the consent
of the Holders of all Certificates then outstanding and the consent of the
holder of any related Serviced Pari Passu Loan or Serviced B Note; or
(v) amend Section 11.01 of the Pooling and Servicing Agreement.
No amendment shall be made to the Pooling and Servicing Agreement unless the
Trustee shall have received an Opinion of Counsel that such amendment is
permitted under the Pooling and Servicing Agreement and will not cause the
Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, each
Grantor Trust to fail to qualify as a grantor trust, cause any trust fund in
which a Serviced Pari Passu Loan or Serviced B Note is included as a REMIC or
result in the imposition of a tax on the Trust Fund, the Upper-Tier REMIC or the
Lower-Tier REMIC.
The Sole Certificateholder will have the option, upon 60 days' prior notice
given to each of the parties to the Pooling and Servicing Agreement, which
notice the Trustee is required to promptly forward to Certificateholders and
Rating Agencies in the manner set forth in the Pooling and Servicing Agreement,
to exchange all of its Certificates (other than the Residual Certificates) for
all of the Mortgage Loans and each REO Property (or beneficial interest in the
Mortgaged Property under a Non-Serviced Mortgage Loan) remaining in the Trust
Fund, and thereby effect termination of the Trust Fund and early retirement of
the then outstanding Certificates, on any Distribution Date on which the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates is reduced
to zero.
If the Sole Certificateholder chooses not to exercise such right, or if the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates has not been
reduced to zero, the Servicers or the Special Servicer (in that order) will have
the option, upon 60 days' prior notice given to the Trustee and each of the
other parties to the Pooling and Servicing Agreement, which notice the Trustee
is required to promptly forward to Certificateholders and Rating Agencies in the
manner set forth in the Pooling and Servicing Agreement, to purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is less than 1% of
the aggregate Cut-off Date Principal Balance of all the Mortgage Loans.
Subject to Section 9.02 of the Pooling and Servicing Agreement, the
obligations created by the Pooling and Servicing Agreement and the Trust Fund
created thereby (other than the obligation of the Trustee to provide for and
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the United States to
the Court of St. ▇▇▇▇▇, living on the date hereof.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to
be duly executed under this official seal.
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar under
the Pooling and Servicing Agreement.
By:
------------------------------------
AUTHORIZED REPRESENTATIVE
Dated: May 8, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS E CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
-----------------------------------
AUTHORIZED REPRESENTATIVE
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or
upon transfer of, an interest in this Remaining Principal Amount of Notation
Date Book-Entry Certificate Book-Entry Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _______________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
__________________________________ account number _______________ or, if mailed
by check, to _______________________________________. Statements should be
mailed to _______________________________________________________________. This
information is provided by assignee named above, or ___________________________,
as its agent.
EXHIBIT A-16
GE COMMERCIAL MORTGAGE CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-C1, CLASS F
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
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 WHOM THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) (OTHER THAN WITH RESPECT TO A
RESIDUAL CERTIFICATE) 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, (D) (OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE OR AN
ERISA RESTRICTED CERTIFICATE (WITHOUT GIVING EFFECT TO CLAUSE (b)(ii) OF SUCH
DEFINITION)) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR
RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR (E) (OTHER THAN WITH
RESPECT TO A RESIDUAL CERTIFICATE) 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 REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
LAST TWO PAGES OF THIS CERTIFICATE.
THIS CLASS F CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
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 INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL
BUYER OR (OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE) AN INSTITUTIONAL
ACCREDITED INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL
IF SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A.
THE PASS-THROUGH RATE ON THE CLASS F CERTIFICATES APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF
WILL BE: (i) 5.9853% FOR THE INITIAL DISTRIBUTION THE MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND
DATE AND (ii) THE WEIGHTED AVERAGE NET MORTGAGE RATE PREPAYMENTS RECEIVED ON OR BEFORE CUT-OFF DATE:
FOR ANY DISTRIBUTION DATE AFTER THE INITIAL $3,953,465,462
DISTRIBUTION DATE
MASTER SERVICERS: KEYCORP REAL ESTATE CAPITAL MARKETS,
DENOMINATION: $24,710,000 INC. AND BANK OF AMERICA, NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SPECIAL SERVICER: LNR PARTNERS, INC.
MAY 1, 2007
TRUSTEE: ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: WITH RESPECT TO EACH MORTGAGE LOAN,
THE LATER OF MAY 1, 2007 OR THE DATE OF ORIGINATION
OF SUCH MORTGAGE LOAN (OR, WITH RESPECT TO LOAN NOS.
1 AND 16, MAY 5, 2007) CUSIP NO.: [_____]
CLOSING DATE: MAY 8, 2007 ISIN NO.: [____]
FIRST DISTRIBUTION DATE: CERTIFICATE NO.: F-1
JUNE 11, 2007
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS F CERTIFICATES
AS OF THE CLOSING DATE: $24,710,000
CLASS F CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing fixed rate balloon
and fully amortizing mortgage loans (the "Mortgage Loans"), all payments on or
collections in respect of the Mortgage Loans due after the Cut-off Date, all REO
Properties and revenues received in respect thereof, the mortgagee's rights
under the Insurance Policies, any Assignment of Leases, and any guaranties,
escrow accounts or other collateral as security for the Mortgage Loans and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Account, the Interest Reserve Account, the Excess Interest
Distribution Account and the REO Accounts, formed and sold by
GE COMMERCIAL MORTGAGE CORPORATION
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GE
COMMERCIAL MORTGAGE CORPORATION, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class F Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of May 1, 2007 (the "Pooling and Servicing
Agreement"), among GE Commercial Mortgage Corporation (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Servicers and the Special Servicer. A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated
as Certificates of the series specified on the face hereof (herein called the
"Certificates") and representing an interest in the Class of Certificates
specified on the face hereof equal to the quotient expressed as a percentage
obtained by dividing the Denomination of this Certificate specified on the face
hereof, by the aggregate initial Certificate Balance of the Class F
Certificates. The Certificates are designated as the GE Commercial Mortgage
Corporation, Commercial Mortgage Pass-Through Certificates, Series 2007-C1 and
are issued in thirty classes as specifically set forth in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee
shall distribute to the Person in whose name this Certificate is registered as
of the related Record Date, an amount equal to such Person's pro rata share
(based on the Percentage Interest represented by this Certificate) of that
portion of the aggregate amount of principal and interest then distributable, if
any, allocable to the Class of Certificates of the same Class as this
Certificate for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted
of 360 days and each month consisted of 30 days) during the Interest Accrual
Period relating to such Distribution Date at the Class F Pass-Through Rate
specified above on the Certificate Balance of this Certificate immediately prior
to each Distribution Date. Principal and interest allocated to this Certificate
on any Distribution Date will be in an amount due to this Certificate's pro rata
share of the Available Distribution Amount to be distributed on the Certificates
of this Class as of such Distribution Date, with a final distribution to be made
upon retirement of this Certificate as set forth in the Pooling and Servicing
Agreement.
Any Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. Any Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other things,
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Account will be held in the name of the Trustee, on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicers (with respect to the Certificate Account) or the Trustee (with respect
to the Distribution Account) will be authorized to make withdrawals therefrom.
Amounts on deposit in such accounts may be invested in Permitted Investments.
Interest or other income earned on funds (i) in the Certificate Account will be
paid to the Servicers and (ii) in the Distribution Account will be paid to the
Trustee as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account and
the Distribution Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class of
Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder has provided the Trustee with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity having appropriate facilities
therefor. The final distribution on this Certificate shall be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
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 Section 4.01(g) of the Pooling and Servicing Agreement shall
not have been surrendered for cancellation within six months after the time
specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders to surrender their Certificates for
cancellation in order to receive the final distribution with respect thereto. If
within one year after the second notice all such Certificates shall not have
been surrendered for cancellation, the Trustee, directly or through an agent,
shall take such steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it deems 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 under the Pooling and Servicing Agreement by the Trustee as
a result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with Section 4.01(g) of the Pooling and
Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register only upon surrender of this Certificate for
registration of transfer at the office of the Certificate Registrar, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney-in-fact duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized Denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class X-P
and Class X-C Certificates will be issued in book-entry form through the
facilities of DTC in Denominations of not less than $1,000,000 initial Notional
Amount and in integral multiples of $1 in excess thereof, with one Certificate
of such Class evidencing an additional amount equal to the remainder of the
initial Notional Amount of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Offered Certificates will be issued in book-entry form
through the facilities of DTC in Denominations of not less than $10,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. Subject to the terms
of the Pooling and Servicing Agreement, the Non-Registered Certificates (other
than the Class X Certificates and the Residual Certificates) will be issued in
book-entry form through the facilities of DTC in Denominations of not less than
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. The
Class R and Class LR Certificates will be issued in fully registered,
certificated form, in Denominations representing Percentage Interests of not
less than 20%.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) thereof. 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 in Section 5.02(b) of the Pooling and Servicing Agreement) incurred
by the Certificate Registrar in connection with such transfer. With respect to
any transfer or exchange of any Certificate, the Certificate Registrar may
require payment by each Transferor of a sum sufficient to cover any tax, expense
or other governmental charge payable in connection with any such transfer or
exchange.
The Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar and any of their agents may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
The Depositor, the Servicers, the Special Servicer, the Trustee, the Certificate
Registrar or any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time by the
Depositor, the Servicers, the Special Servicer and the Trustee, without the
consent of any of the Certificateholders or the holder of any Serviced Pari
Passu Loan or Serviced B Note: to cure any ambiguity; to cause the provisions
therein to conform or be consistent with or in furtherance of the statements
made with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement in the Private Placement Memorandum or the Prospectus or to correct or
supplement any provisions therein or in the Pooling and Servicing Agreement,
that may be inconsistent with any other provision therein or in the Pooling and
Servicing Agreement, or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of (i) the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC (ii) each Grantor Trust as a grantor trust (at all
times that any Certificate is outstanding) or (iii) any trust fund in which a
Serviced Pari Passu Loan or Serviced B Note is included as a REMIC (at all times
that any related securities are outstanding) or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC pursuant to the Code that would be a claim against the Trust
Fund, the Lower-Tier REMIC or the Upper-Tier REMIC; provided that, the Trustee
has received an Opinion of Counsel addressed to the parties to the Pooling and
Servicing Agreement (at the expense of the party requesting the amendment) to
the effect that (a) such action is necessary or desirable to maintain such
qualification or to avoid or minimize the risk of the imposition of any such tax
and (b) such action will not adversely affect in any material respect the
interests of any Certificateholder or any holder of a related Serviced Pari
Passu Loan or Serviced B Note; to change the timing and/or nature of deposits
into the Certificate Account, any Serviced Whole Loan Custodial Account, the
Distribution Account or REO Account or to change the name in which the
Certificate Account or the Serviced Whole Loan Custodial Account is maintained,
provided that (a) the P&I Advance Date shall in no event be later than the
related Distribution Date, (b) such change shall not, as evidenced by an Opinion
of Counsel addressed to the parties to the Pooling and Servicing Agreement (at
the expense of the party requesting the amendment), adversely affect in any
material respect the interests of any Certificateholder or any holder of a
related Serviced Pari Passu Loan or Serviced B Note and (c) such change shall
not result in the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates or any Class of Serviced Pari Passu
Loan Securities, as evidenced by a letter from each Rating Agency to such
effect; to modify, eliminate or add to the provisions of Section 5.02(d) of the
Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," provided that, such change shall not, as evidenced by an
Opinion of Counsel addressed to the parties to the Pooling and Servicing
Agreement, cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or
any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement or any other change, provided that, such action shall not adversely
affect in any material respect the interests of any Certificateholder or any
holder of a related Serviced Pari Passu Loan or Serviced B Note not consenting
thereto as evidenced by an Opinion of Counsel or by written confirmation from
the Rating Agencies to the effect that the change would not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or any Class of Serviced Pari Passu Loan Securities;
and to amend or supplement any provision in the Pooling and Servicing Agreement
to the extent necessary to maintain the rating or ratings assigned to each Class
of Certificates by each applicable Rating Agency and any other applicable rating
agency; provided that, such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or any Class of Serviced Pari Passu Loan Securities, as evidenced
by a letter from each applicable Rating Agency and any other applicable rating
agency to such effect.
The Pooling and Servicing Agreement may also be amended from time to time by
the Depositor, the Servicers, the Special Servicer and the Trustee with the
consent of the Holders of Certificates evidencing in the aggregate not less than
66 2/3% of the Percentage Interests of each Class of Certificates affected
thereby for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Pooling and Servicing Agreement or of
modifying in any manner the rights of the Holders of Certificates of such Class;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate, or which are required to be
distributed to the holder of any Serviced Pari Passu Loan or Serviced B
Note without the consent of such holder of any Serviced Pari Passu Loan or
Serviced B Note; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding or the voting rights of the holder of any
Serviced Pari Passu Loan or Serviced B Note without the consent of such
holder of any Serviced Pari Passu Loan or Serviced B Note; or
(iv) modify the definition of Servicing Standard without the consent
of the Holders of all Certificates then outstanding and the consent of the
holder of any related Serviced Pari Passu Loan or Serviced B Note; or
(v) amend Section 11.01 of the Pooling and Servicing Agreement.
No amendment shall be made to the Pooling and Servicing Agreement unless the
Trustee shall have received an Opinion of Counsel that such amendment is
permitted under the Pooling and Servicing Agreement and will not cause the
Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, each
Grantor Trust to fail to qualify as a grantor trust, cause any trust fund in
which a Serviced Pari Passu Loan or Serviced B Note is included as a REMIC or
result in the imposition of a tax on the Trust Fund, the Upper-Tier REMIC or the
Lower-Tier REMIC.
The Sole Certificateholder will have the option, upon 60 days' prior notice
given to each of the parties to the Pooling and Servicing Agreement, which
notice the Trustee is required to promptly forward to Certificateholders and
Rating Agencies in the manner set forth in the Pooling and Servicing Agreement,
to exchange all of its Certificates (other than the Residual Certificates) for
all of the Mortgage Loans and each REO Property (or beneficial interest in the
Mortgaged Property under a Non-Serviced Mortgage Loan) remaining in the Trust
Fund, and thereby effect termination of the Trust Fund and early retirement of
the then outstanding Certificates, on any Distribution Date on which the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates is reduced
to zero.
If the Sole Certificateholder chooses not to exercise such right, or if the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates has not been
reduced to zero, the Servicers or the Special Servicer (in that order) will have
the option, upon 60 days' prior notice given to the Trustee and each of the
other parties to the Pooling and Servicing Agreement, which notice the Trustee
is required to promptly forward to Certificateholders and Rating Agencies in the
manner set forth in the Pooling and Servicing Agreement, to purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is less than 1% of
the aggregate Cut-off Date Principal Balance of all the Mortgage Loans.
Subject to Section 9.02 of the Pooling and Servicing Agreement, the
obligations created by the Pooling and Servicing Agreement and the Trust Fund
created thereby (other than the obligation of the Trustee to provide for and
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the United States to
the Court of St. ▇▇▇▇▇, living on the date hereof.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to
be duly executed under this official seal.
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar under
the Pooling and Servicing Agreement.
By:
------------------------------------
AUTHORIZED REPRESENTATIVE
Dated: May 8, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS F CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
-----------------------------------
AUTHORIZED REPRESENTATIVE
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or
upon transfer of, an interest in this Remaining Principal Amount of Notation
Date Book-Entry Certificate Book-Entry Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _______________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
__________________________________ account number _______________ or, if mailed
by check, to _______________________________________. Statements should be
mailed to _______________________________________________________________. This
information is provided by assignee named above, or ___________________________,
as its agent.
EXHIBIT A-17
GE COMMERCIAL MORTGAGE CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-C1, CLASS G
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
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 WHOM THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) (OTHER THAN WITH RESPECT TO A
RESIDUAL CERTIFICATE) 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, (D) (OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE OR AN
ERISA RESTRICTED CERTIFICATE (WITHOUT GIVING EFFECT TO CLAUSE (b)(ii) OF SUCH
DEFINITION)) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR
RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR (E) (OTHER THAN WITH
RESPECT TO A RESIDUAL CERTIFICATE) 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 REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
LAST TWO PAGES OF THIS CERTIFICATE.
THIS CLASS G CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
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 INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL
BUYER OR (OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE) AN INSTITUTIONAL
ACCREDITED INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL
IF SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A.
THE PASS-THROUGH RATE ON THE CLASS G CERTIFICATES APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF
WILL BE: (i) 5.9853% FOR THE INITIAL DISTRIBUTION THE MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND
DATE AND (ii) THE WEIGHTED AVERAGE NET MORTGAGE RATE PREPAYMENTS RECEIVED ON OR BEFORE CUT-OFF DATE:
FOR ANY DISTRIBUTION DATE AFTER THE INITIAL $3,953,465,462
DISTRIBUTION DATE
MASTER SERVICERS: KEYCORP REAL ESTATE CAPITAL MARKETS
DENOMINATION: $49,418,000 INC. AND BANK OF AMERICA, NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SPECIAL SERVICER: LNR PARTNERS, INC.
MAY 1, 2007
TRUSTEE: ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: WITH RESPECT TO EACH MORTGAGE LOAN,
THE LATER OF MAY 1, 2007 OR THE DATE OF ORIGINATION
OF SUCH MORTGAGE LOAN (OR, WITH RESPECT TO LOAN NOS.
1 AND 16, MAY 5, 2007) CUSIP NO.: [____]
CLOSING DATE: MAY 8, 2007 ISIN NO.: [_____]
FIRST DISTRIBUTION DATE: CERTIFICATE NO.: G-1
JUNE 11, 2007
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS G CERTIFICATES
AS OF THE CLOSING DATE: $49,418,000
CLASS G CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing fixed rate balloon
and fully amortizing mortgage loans (the "Mortgage Loans"), all payments on or
collections in respect of the Mortgage Loans due after the Cut-off Date, all REO
Properties and revenues received in respect thereof, the mortgagee's rights
under the Insurance Policies, any Assignment of Leases, and any guaranties,
escrow accounts or other collateral as security for the Mortgage Loans and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Account, the Interest Reserve Account, the Excess Interest
Distribution Account and the REO Accounts, formed and sold by
GE COMMERCIAL MORTGAGE CORPORATION
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GE
COMMERCIAL MORTGAGE CORPORATION, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class G Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of May 1, 2007 (the "Pooling and Servicing
Agreement"), among GE Commercial Mortgage Corporation (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Servicers and the Special Servicer. A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated
as Certificates of the series specified on the face hereof (herein called the
"Certificates") and representing an interest in the Class of Certificates
specified on the face hereof equal to the quotient expressed as a percentage
obtained by dividing the Denomination of this Certificate specified on the face
hereof, by the aggregate initial Certificate Balance of the Class G
Certificates. The Certificates are designated as the GE Commercial Mortgage
Corporation, Commercial Mortgage Pass-Through Certificates, Series 2007-C1 and
are issued in thirty classes as specifically set forth in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduits," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee
shall distribute to the Person in whose name this Certificate is registered as
of the related Record Date, an amount equal to such Person's pro rata share
(based on the Percentage Interest represented by this Certificate) of that
portion of the aggregate amount of principal and interest then distributable, if
any, allocable to the Class of Certificates of the same Class as this
Certificate for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted
of 360 days and each month consisted of 30 days) during the Interest Accrual
Period relating to such Distribution Date at the Class G Pass-Through Rate
specified above on the Certificate Balance of this Certificate immediately prior
to each Distribution Date. Principal and interest allocated to this Certificate
on any Distribution Date will be in an amount due to this Certificate's pro rata
share of the Available Distribution Amount to be distributed on the Certificates
of this Class as of such Distribution Date, with a final distribution to be made
upon retirement of this Certificate as set forth in the Pooling and Servicing
Agreement.
Any Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. Any Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other things,
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Account will be held in the name of the Trustee, on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicers (with respect to the Certificate Account) or the Trustee (with respect
to the Distribution Account) will be authorized to make withdrawals therefrom.
Amounts on deposit in such accounts may be invested in Permitted Investments.
Interest or other income earned on funds (i) in the Certificate Account will be
paid to the Servicers and (ii) in the Distribution Account will be paid to the
Trustee as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account and
the Distribution Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class of
Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder has provided the Trustee with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity having appropriate facilities
therefor. The final distribution on this Certificate shall be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
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 Section 4.01(g) of the Pooling and Servicing Agreement shall
not have been surrendered for cancellation within six months after the time
specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders to surrender their Certificates for
cancellation in order to receive the final distribution with respect thereto. If
within one year after the second notice all such Certificates shall not have
been surrendered for cancellation, the Trustee, directly or through an agent,
shall take such steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it deems 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 under the Pooling and Servicing Agreement by the Trustee as
a result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with Section 4.01(g) of the Pooling and
Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register only upon surrender of this Certificate for
registration of transfer at the office of the Certificate Registrar, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney-in-fact duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized Denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class X-P
and Class X-C Certificates will be issued in book-entry form through the
facilities of DTC in Denominations of not less than $1,000,000 initial Notional
Amount and in integral multiples of $1 in excess thereof, with one Certificate
of such Class evidencing an additional amount equal to the remainder of the
initial Notional Amount of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Offered Certificates will be issued in book-entry form
through the facilities of DTC in Denominations of not less than $10,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. Subject to the terms
of the Pooling and Servicing Agreement, the Non-Registered Certificates (other
than the Class X Certificates and the Residual Certificates) will be issued in
book-entry form through the facilities of DTC in Denominations of not less than
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. The
Class R and Class LR Certificates will be issued in fully registered,
certificated form, in Denominations representing Percentage Interests of not
less than 20%.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) thereof. 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 in Section 5.02(b) of the Pooling and Servicing Agreement) incurred
by the Certificate Registrar in connection with such transfer. With respect to
any transfer or exchange of any Certificate, the Certificate Registrar may
require payment by each Transferor of a sum sufficient to cover any tax, expense
or other governmental charge payable in connection with any such transfer or
exchange.
The Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar and any of their agents may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
The Depositor, the Servicers, the Special Servicer, the Trustee, the Certificate
Registrar or any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time by the
Depositor, the Servicers, the Special Servicer and the Trustee, without the
consent of any of the Certificateholders or the holder of any Serviced Pari
Passu Loan or Serviced B Note: to cure any ambiguity; to cause the provisions
therein to conform or be consistent with or in furtherance of the statements
made with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement in the Private Placement Memorandum or the Prospectus or to correct or
supplement any provisions therein or in the Pooling and Servicing Agreement,
that may be inconsistent with any other provision therein or in the Pooling and
Servicing Agreement, or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of (i) the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC (ii) each Grantor Trust as a grantor trust (at all
times that any Certificate is outstanding) or (iii) any trust fund in which a
Serviced Pari Passu Loan or Serviced B Note is included as a REMIC (at all times
that any related securities are outstanding) or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC pursuant to the Code that would be a claim against the Trust
Fund, the Lower-Tier REMIC or the Upper-Tier REMIC; provided that, the Trustee
has received an Opinion of Counsel addressed to the parties to the Pooling and
Servicing Agreement (at the expense of the party requesting the amendment) to
the effect that (a) such action is necessary or desirable to maintain such
qualification or to avoid or minimize the risk of the imposition of any such tax
and (b) such action will not adversely affect in any material respect the
interests of any Certificateholder or any holder of a related Serviced Pari
Passu Loan or Serviced B Note; to change the timing and/or nature of deposits
into the Certificate Account, any Serviced Whole Loan Custodial Account, the
Distribution Account or REO Account or to change the name in which the
Certificate Account or the Serviced Whole Loan Custodial Account is maintained,
provided that (a) the P&I Advance Date shall in no event be later than the
related Distribution Date, (b) such change shall not, as evidenced by an Opinion
of Counsel addressed to the parties to the Pooling and Servicing Agreement (at
the expense of the party requesting the amendment), adversely affect in any
material respect the interests of any Certificateholder or any holder of a
related Serviced Pari Passu Loan or Serviced B Note and (c) such change shall
not result in the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates or any Class of Serviced Pari Passu
Loan Securities, as evidenced by a letter from each Rating Agency to such
effect; to modify, eliminate or add to the provisions of Section 5.02(d) of the
Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," provided that, such change shall not, as evidenced by an
Opinion of Counsel addressed to the parties to the Pooling and Servicing
Agreement, cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or
any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement or any other change, provided that, such action shall not adversely
affect in any material respect the interests of any Certificateholder or any
holder of a related Serviced Pari Passu Loan or Serviced B Note not consenting
thereto as evidenced by an Opinion of Counsel or by written confirmation from
the Rating Agencies to the effect that the change would not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or any Class of Serviced Pari Passu Loan Securities;
and to amend or supplement any provision in the Pooling and Servicing Agreement
to the extent necessary to maintain the rating or ratings assigned to each Class
of Certificates by each applicable Rating Agency and any other applicable rating
agency; provided that, such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or any Class of Serviced Pari Passu Loan Securities, as evidenced
by a letter from each applicable Rating Agency and any other applicable rating
agency to such effect.
The Pooling and Servicing Agreement may also be amended from time to time by
the Depositor, the Servicers, the Special Servicer and the Trustee with the
consent of the Holders of Certificates evidencing in the aggregate not less than
66 2/3% of the Percentage Interests of each Class of Certificates affected
thereby for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Pooling and Servicing Agreement or of
modifying in any manner the rights of the Holders of Certificates of such Class;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate, or which are required to be
distributed to the holder of any Serviced Pari Passu Loan or Serviced B
Note without the consent of such holder of any Serviced Pari Passu Loan or
Serviced B Note; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding or the voting rights of the holder of any
Serviced Pari Passu Loan or Serviced B Note without the consent of such
holder of any Serviced Pari Passu Loan or Serviced B Note; or
(iv) modify the definition of Servicing Standard without the consent
of the Holders of all Certificates then outstanding and the consent of the
holder of any related Serviced Pari Passu Loan or Serviced B Note; or
(v) amend Section 11.01 of the Pooling and Servicing Agreement.
No amendment shall be made to the Pooling and Servicing Agreement unless the
Trustee shall have received an Opinion of Counsel that such amendment is
permitted under the Pooling and Servicing Agreement and will not cause the
Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, each
Grantor Trust to fail to qualify as a grantor trust, cause any trust fund in
which a Serviced Pari Passu Loan or Serviced B Note is included as a REMIC or
result in the imposition of a tax on the Trust Fund, the Upper-Tier REMIC or the
Lower-Tier REMIC.
The Sole Certificateholder will have the option, upon 60 days' prior notice
given to each of the parties to the Pooling and Servicing Agreement, which
notice the Trustee is required to promptly forward to Certificateholders and
Rating Agencies in the manner set forth in the Pooling and Servicing Agreement,
to exchange all of its Certificates (other than the Residual Certificates) for
all of the Mortgage Loans and each REO Property (or beneficial interest in the
Mortgaged Property under a Non-Serviced Mortgage Loan) remaining in the Trust
Fund, and thereby effect termination of the Trust Fund and early retirement of
the then outstanding Certificates, on any Distribution Date on which the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates is reduced
to zero.
If the Sole Certificateholder chooses not to exercise such right, or if the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates has not been
reduced to zero, the Servicers or the Special Servicer (in that order) will have
the option, upon 60 days' prior notice given to the Trustee and each of the
other parties to the Pooling and Servicing Agreement, which notice the Trustee
is required to promptly forward to Certificateholders and Rating Agencies in the
manner set forth in the Pooling and Servicing Agreement, to purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is less than 1% of
the aggregate Cut-off Date Principal Balance of all the Mortgage Loans.
Subject to Section 9.02 of the Pooling and Servicing Agreement, the
obligations created by the Pooling and Servicing Agreement and the Trust Fund
created thereby (other than the obligation of the Trustee to provide for and
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the United States to
the Court of St. ▇▇▇▇▇, living on the date hereof.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to
be duly executed under this official seal.
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar under
the Pooling and Servicing Agreement.
By:
------------------------------------
AUTHORIZED REPRESENTATIVE
Dated: May 8, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS G CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
-----------------------------------
AUTHORIZED REPRESENTATIVE
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or
upon transfer of, an interest in this Remaining Principal Amount of Notation
Date Book-Entry Certificate Book-Entry Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _______________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
__________________________________ account number _______________ or, if mailed
by check, to _______________________________________. Statements should be
mailed to _______________________________________________________________. This
information is provided by assignee named above, or ___________________________,
as its agent.
EXHIBIT A-18
GE COMMERCIAL MORTGAGE CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-C1, CLASS H
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
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 WHOM THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) (OTHER THAN WITH RESPECT TO A
RESIDUAL CERTIFICATE) 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, (D) (OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE OR AN
ERISA RESTRICTED CERTIFICATE (WITHOUT GIVING EFFECT TO CLAUSE (b)(ii) OF SUCH
DEFINITION)) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR
RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR (E) (OTHER THAN WITH
RESPECT TO A RESIDUAL CERTIFICATE) 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 REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
LAST TWO PAGES OF THIS CERTIFICATE.
THIS CLASS H CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
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 INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL
BUYER OR (OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE) AN INSTITUTIONAL
ACCREDITED INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL
IF SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A.
THE PASS-THROUGH RATE ON THE CLASS H CERTIFICATES APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF
WILL BE: (i) 5.9853% FOR THE INITIAL DISTRIBUTION THE MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND
DATE AND (ii) THE WEIGHTED AVERAGE NET MORTGAGE RATE PREPAYMENTS RECEIVED ON OR BEFORE CUT-OFF DATE:
FOR ANY DISTRIBUTION DATE AFTER THE INITIAL $3,953,465,462
DISTRIBUTION DATE
MASTER SERVICERS: KEYCORP REAL ESTATE CAPITAL MARKETS,
DENOMINATION: $44,476,000 INC. AND BANK OF AMERICA, NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SPECIAL SERVICER: LNR PARTNERS, INC.
MAY 1, 2007
TRUSTEE: ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: WITH RESPECT TO EACH MORTGAGE LOAN,
THE LATER OF MAY 1, 2007 OR THE DATE OF ORIGINATION
OF SUCH MORTGAGE LOAN (OR, WITH RESPECT TO LOAN NOS.
1 AND 16, MAY 5, 2007) CUSIP NO.: [____]
CLOSING DATE: MAY 8, 2007 ISIN NO.: [_____]
FIRST DISTRIBUTION DATE: CERTIFICATE NO.: H-1
JUNE 11, 2007
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS H CERTIFICATES
AS OF THE CLOSING DATE: $44,476,000
CLASS H CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing fixed rate balloon
and fully amortizing mortgage loans (the "Mortgage Loans"), all payments on or
collections in respect of the Mortgage Loans due after the Cut-off Date, all REO
Properties and revenues received in respect thereof, the mortgagee's rights
under the Insurance Policies, any Assignment of Leases, and any guaranties,
escrow accounts or other collateral as security for the Mortgage Loans and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Account, the Interest Reserve Account, the Excess Interest
Distribution Account and the REO Accounts, formed and sold by
GE COMMERCIAL MORTGAGE CORPORATION
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GE
COMMERCIAL MORTGAGE CORPORATION, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class H Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of May 1, 2007 (the "Pooling and Servicing
Agreement"), among GE Commercial Mortgage Corporation (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Servicers and the Special Servicer. A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated
as Certificates of the series specified on the face hereof (herein called the
"Certificates") and representing an interest in the Class of Certificates
specified on the face hereof equal to the quotient expressed as a percentage
obtained by dividing the Denomination of this Certificate specified on the face
hereof, by the aggregate initial Certificate Balance of the Class H
Certificates. The Certificates are designated as the GE Commercial Mortgage
Corporation, Commercial Mortgage Pass-Through Certificates, Series 2007-C1 and
are issued in thirty classes as specifically set forth in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee
shall distribute to the Person in whose name this Certificate is registered as
of the related Record Date, an amount equal to such Person's pro rata share
(based on the Percentage Interest represented by this Certificate) of that
portion of the aggregate amount of principal and interest then distributable, if
any, allocable to the Class of Certificates of the same Class as this
Certificate for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted
of 360 days and each month consisted of 30 days) during the Interest Accrual
Period relating to such Distribution Date at the Class H Pass-Through Rate
specified above on the Certificate Balance of this Certificate immediately prior
to each Distribution Date. Principal and interest allocated to this Certificate
on any Distribution Date will be in an amount due to this Certificate's pro rata
share of the Available Distribution Amount to be distributed on the Certificates
of this Class as of such Distribution Date, with a final distribution to be made
upon retirement of this Certificate as set forth in the Pooling and Servicing
Agreement.
Any Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. Any Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other things,
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Account will be held in the name of the Trustee, on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicers (with respect to the Certificate Account) or the Trustee (with respect
to the Distribution Account) will be authorized to make withdrawals therefrom.
Amounts on deposit in such accounts may be invested in Permitted Investments.
Interest or other income earned on funds (i) in the Certificate Account will be
paid to the Servicers and (ii) in the Distribution Account will be paid to the
Trustee as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account and
the Distribution Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class of
Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder has provided the Trustee with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity having appropriate facilities
therefor. The final distribution on this Certificate shall be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
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 Section 4.01(g) of the Pooling and Servicing Agreement shall
not have been surrendered for cancellation within six months after the time
specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders to surrender their Certificates for
cancellation in order to receive the final distribution with respect thereto. If
within one year after the second notice all such Certificates shall not have
been surrendered for cancellation, the Trustee, directly or through an agent,
shall take such steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it deems 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 under the Pooling and Servicing Agreement by the Trustee as
a result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with Section 4.01(g) of the Pooling and
Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register only upon surrender of this Certificate for
registration of transfer at the office of the Certificate Registrar, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney-in-fact duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized Denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class X-P
and Class X-C Certificates will be issued in book-entry form through the
facilities of DTC in Denominations of not less than $1,000,000 initial Notional
Amount and in integral multiples of $1 in excess thereof, with one Certificate
of such Class evidencing an additional amount equal to the remainder of the
initial Notional Amount of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Offered Certificates will be issued in book-entry form
through the facilities of DTC in Denominations of not less than $10,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. Subject to the terms
of the Pooling and Servicing Agreement, the Non-Registered Certificates (other
than the Class X Certificates and the Residual Certificates) will be issued in
book-entry form through the facilities of DTC in Denominations of not less than
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. The
Class R and Class LR Certificates will be issued in fully registered,
certificated form, in Denominations representing Percentage Interests of not
less than 20%.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) thereof. 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 in Section 5.02(b) of the Pooling and Servicing Agreement) incurred
by the Certificate Registrar in connection with such transfer. With respect to
any transfer or exchange of any Certificate, the Certificate Registrar may
require payment by each Transferor of a sum sufficient to cover any tax, expense
or other governmental charge payable in connection with any such transfer or
exchange.
The Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar and any of their agents may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
The Depositor, the Servicers, the Special Servicer, the Trustee, the Certificate
Registrar or any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time by the
Depositor, the Servicers, the Special Servicer and the Trustee, without the
consent of any of the Certificateholders or the holder of any Serviced Pari
Passu Loan or Serviced B Note: to cure any ambiguity; to cause the provisions
therein to conform or be consistent with or in furtherance of the statements
made with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement in the Private Placement Memorandum or the Prospectus or to correct or
supplement any provisions therein or in the Pooling and Servicing Agreement,
that may be inconsistent with any other provision therein or in the Pooling and
Servicing Agreement, or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of (i) the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC (ii) each Grantor Trust as a grantor trust (at all
times that any Certificate is outstanding) or (iii) any trust fund in which a
Serviced Pari Passu Loan or Serviced B Note is included as a REMIC (at all times
that any related securities are outstanding) or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC pursuant to the Code that would be a claim against the Trust
Fund, the Lower-Tier REMIC or the Upper-Tier REMIC; provided that, the Trustee
has received an Opinion of Counsel addressed to the parties to the Pooling and
Servicing Agreement (at the expense of the party requesting the amendment) to
the effect that (a) such action is necessary or desirable to maintain such
qualification or to avoid or minimize the risk of the imposition of any such tax
and (b) such action will not adversely affect in any material respect the
interests of any Certificateholder or any holder of a related Serviced Pari
Passu Loan or Serviced B Note; to change the timing and/or nature of deposits
into the Certificate Account, any Serviced Whole Loan Custodial Account, the
Distribution Account or REO Account or to change the name in which the
Certificate Account or the Serviced Whole Loan Custodial Account is maintained,
provided that (a) the P&I Advance Date shall in no event be later than the
related Distribution Date, (b) such change shall not, as evidenced by an Opinion
of Counsel addressed to the parties to the Pooling and Servicing Agreement (at
the expense of the party requesting the amendment), adversely affect in any
material respect the interests of any Certificateholder or any holder of a
related Serviced Pari Passu Loan or Serviced B Note and (c) such change shall
not result in the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates or any of Serviced Pari Passu Loan
Securities, as evidenced by a letter from each Rating Agency to such effect; to
modify, eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
provided that, such change shall not, as evidenced by an Opinion of Counsel
addressed to the parties to the Pooling and Servicing Agreement, cause the Trust
Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement or any other change, provided that, such action shall not adversely
affect in any material respect the interests of any Certificateholder or any
holder of a related Serviced Pari Passu Loan or Serviced B Note not consenting
thereto as evidenced by an Opinion of Counsel or by written confirmation from
the Rating Agencies to the effect that the change would not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or any Class of Serviced Pari Passu Loan Securities;
and to amend or supplement any provision in the Pooling and Servicing Agreement
to the extent necessary to maintain the rating or ratings assigned to each Class
of Certificates by each applicable Rating Agency and any other applicable rating
agency; provided that, such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or any Class of Serviced Pari Passu Loan Securities, as evidenced
by a letter from each applicable Rating Agency and any other applicable rating
agency to such effect.
The Pooling and Servicing Agreement may also be amended from time to time by
the Depositor, the Servicers, the Special Servicer and the Trustee with the
consent of the Holders of Certificates evidencing in the aggregate not less than
66 2/3% of the Percentage Interests of each Class of Certificates affected
thereby for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Pooling and Servicing Agreement or of
modifying in any manner the rights of the Holders of Certificates of such Class;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate, or which are required to be
distributed to the holder of any Serviced Pari Passu Loan or Serviced B
Note without the consent of such holder of any Serviced Pari Passu Loan or
Serviced B Note; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding or the voting rights of the holder of any
Serviced Pari Passu Loan or Serviced B Note without the consent of such
holder of any Serviced Pari Passu Loan or Serviced B Note; or
(iv) modify the definition of Servicing Standard without the consent
of the Holders of all Certificates then outstanding and the consent of the
holder of any related Serviced Pari Passu Loan or Serviced B Note; or
(v) amend Section 11.01 of the Pooling and Servicing Agreement.
No amendment shall be made to the Pooling and Servicing Agreement unless the
Trustee shall have received an Opinion of Counsel that such amendment is
permitted under the Pooling and Servicing Agreement and will not cause the
Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, each
Grantor Trust to fail to qualify as a grantor trust, cause any trust fund in
which a Serviced Pari Passu Loan or Serviced B Note is included as a REMIC or
result in the imposition of a tax on the Trust Fund, the Upper-Tier REMIC or the
Lower-Tier REMIC.
The Sole Certificateholder will have the option, upon 60 days' prior notice
given to each of the parties to the Pooling and Servicing Agreement, which
notice the Trustee is required to promptly forward to Certificateholders and
Rating Agencies in the manner set forth in the Pooling and Servicing Agreement,
to exchange all of its Certificates (other than the Residual Certificates) for
all of the Mortgage Loans and each REO Property (or beneficial interest in the
Mortgaged Property under a Non-Serviced Mortgage Loan) remaining in the Trust
Fund, and thereby effect termination of the Trust Fund and early retirement of
the then outstanding Certificates, on any Distribution Date on which the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates is reduced
to zero.
If the Sole Certificateholder chooses not to exercise such right, or if the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates has not been
reduced to zero, the Servicers or the Special Servicer (in that order) will have
the option, upon 60 days' prior notice given to the Trustee and each of the
other parties to the Pooling and Servicing Agreement, which notice the Trustee
is required to promptly forward to Certificateholders and Rating Agencies in the
manner set forth in the Pooling and Servicing Agreement, to purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is less than 1% of
the aggregate Cut-off Date Principal Balance of all the Mortgage Loans.
Subject to Section 9.02 of the Pooling and Servicing Agreement, the
obligations created by the Pooling and Servicing Agreement and the Trust Fund
created thereby (other than the obligation of the Trustee to provide for and
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the United States to
the Court of St. ▇▇▇▇▇, living on the date hereof.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to
be duly executed under this official seal.
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar under
the Pooling and Servicing Agreement.
By:
------------------------------------
AUTHORIZED REPRESENTATIVE
Dated: May 8, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS H CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
-----------------------------------
AUTHORIZED REPRESENTATIVE
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or
upon transfer of, an interest in this Remaining Principal Amount of Notation
Date Book-Entry Certificate Book-Entry Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _______________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
__________________________________ account number _______________ or, if mailed
by check, to _______________________________________. Statements should be
mailed to _______________________________________________________________. This
information is provided by assignee named above, or ___________________________,
as its agent.
EXHIBIT A-19
GE COMMERCIAL MORTGAGE CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-C1, CLASS J
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
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 WHOM THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) (OTHER THAN WITH RESPECT TO A
RESIDUAL CERTIFICATE) 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, (D) (OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE OR AN
ERISA RESTRICTED CERTIFICATE (WITHOUT GIVING EFFECT TO CLAUSE (b)(ii) OF SUCH
DEFINITION)) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR
RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR (E) (OTHER THAN WITH
RESPECT TO A RESIDUAL CERTIFICATE) 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 REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
LAST TWO PAGES OF THIS CERTIFICATE.
THIS CLASS J CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
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 INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL
BUYER OR (OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE) AN INSTITUTIONAL
ACCREDITED INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL
IF SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A.
THE PASS-THROUGH RATE ON THE CLASS J CERTIFICATES APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF
WILL BE: (i) 5.9853% FOR THE INITIAL DISTRIBUTION THE MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND
DATE AND (ii) THE WEIGHTED AVERAGE NET MORTGAGE RATE PREPAYMENTS RECEIVED ON OR BEFORE CUT-OFF DATE:
FOR ANY DISTRIBUTION DATE AFTER THE INITIAL $3,953,465,462
DISTRIBUTION DATE
MASTER SERVICERS: KEYCORP REAL ESTATE CAPITAL MARKETS,
DENOMINATION: $39,535,000 INC. AND BANK OF AMERICA, NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SPECIAL SERVICER: LNR PARTNERS, INC.
MAY 1, 2007
TRUSTEE: ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: WITH RESPECT TO EACH MORTGAGE LOAN,
THE LATER OF MAY 1, 2007 OR THE DATE OF ORIGINATION
OF SUCH MORTGAGE LOAN (OR, WITH RESPECT TO LOAN NOS.
1 AND 16, MAY 5, 2007) CUSIP NO.: [____]
CLOSING DATE: MAY 8, 2007 ISIN NO.: [____]
FIRST DISTRIBUTION DATE: CERTIFICATE NO.: J-1
JUNE 11, 2007
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS J CERTIFICATES
AS OF THE CLOSING DATE: $39,535,000
CLASS J CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing fixed rate balloon
and fully amortizing mortgage loans (the "Mortgage Loans"), all payments on or
collections in respect of the Mortgage Loans due after the Cut-off Date, all REO
Properties and revenues received in respect thereof, the mortgagee's rights
under the Insurance Policies, any Assignment of Leases, and any guaranties,
escrow accounts or other collateral as security for the Mortgage Loans and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Account, the Interest Reserve Account, the Excess Interest
Distribution Account and the REO Accounts, formed and sold by
GE COMMERCIAL MORTGAGE CORPORATION
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GE
COMMERCIAL MORTGAGE CORPORATION, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class J Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of May 1, 2007 (the "Pooling and Servicing
Agreement"), among GE Commercial Mortgage Corporation (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Servicers and the Special Servicer. A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated
as Certificates of the series specified on the face hereof (herein called the
"Certificates") and representing an interest in the Class of Certificates
specified on the face hereof equal to the quotient expressed as a percentage
obtained by dividing the Denomination of this Certificate specified on the face
hereof, by the aggregate initial Certificate Balance of the Class J
Certificates. The Certificates are designated as the GE Commercial Mortgage
Corporation, Commercial Mortgage Pass-Through Certificates, Series 2007-C1 and
are issued in thirty classes as specifically set forth in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee
shall distribute to the Person in whose name this Certificate is registered as
of the related Record Date, an amount equal to such Person's pro rata share
(based on the Percentage Interest represented by this Certificate) of that
portion of the aggregate amount of principal and interest then distributable, if
any, allocable to the Class of Certificates of the same Class as this
Certificate for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted
of 360 days and each month consisted of 30 days) during the Interest Accrual
Period relating to such Distribution Date at the Class J Pass-Through Rate
specified above on the Certificate Balance of this Certificate immediately prior
to each Distribution Date. Principal and interest allocated to this Certificate
on any Distribution Date will be in an amount due to this Certificate's pro rata
share of the Available Distribution Amount to be distributed on the Certificates
of this Class as of such Distribution Date, with a final distribution to be made
upon retirement of this Certificate as set forth in the Pooling and Servicing
Agreement.
Any Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. Any Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other things,
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Account will be held in the name of the Trustee, on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicers (with respect to the Certificate Account) or the Trustee (with respect
to the Distribution Account) will be authorized to make withdrawals therefrom.
Amounts on deposit in such accounts may be invested in Permitted Investments.
Interest or other income earned on funds (i) in the Certificate Account will be
paid to the Servicers and (ii) in the Distribution Account will be paid to the
Trustee as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account and
the Distribution Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class of
Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder has provided the Trustee with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity having appropriate facilities
therefor. The final distribution on this Certificate shall be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
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 Section 4.01(g) of the Pooling and Servicing Agreement shall
not have been surrendered for cancellation within six months after the time
specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders to surrender their Certificates for
cancellation in order to receive the final distribution with respect thereto. If
within one year after the second notice all such Certificates shall not have
been surrendered for cancellation, the Trustee, directly or through an agent,
shall take such steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it deems 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 under the Pooling and Servicing Agreement by the Trustee as
a result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with Section 4.01(g) of the Pooling and
Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register only upon surrender of this Certificate for
registration of transfer at the office of the Certificate Registrar, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney-in-fact duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized Denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class X-P
and Class X-C Certificates will be issued in book-entry form through the
facilities of DTC in Denominations of not less than $1,000,000 initial Notional
Amount and in integral multiples of $1 in excess thereof, with one Certificate
of such Class evidencing an additional amount equal to the remainder of the
initial Notional Amount of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Offered Certificates will be issued in book-entry form
through the facilities of DTC in Denominations of not less than $10,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. Subject to the terms
of the Pooling and Servicing Agreement, the Non-Registered Certificates (other
than the Class X Certificates and the Residual Certificates) will be issued in
book-entry form through the facilities of DTC in Denominations of not less than
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. The
Class R and Class LR Certificates will be issued in fully registered,
certificated form, in Denominations representing Percentage Interests of not
less than 20%.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) thereof. 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 in Section 5.02(b) of the Pooling and Servicing Agreement) incurred
by the Certificate Registrar in connection with such transfer. With respect to
any transfer or exchange of any Certificate, the Certificate Registrar may
require payment by each Transferor of a sum sufficient to cover any tax, expense
or other governmental charge payable in connection with any such transfer or
exchange.
The Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar and any of their agents may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
The Depositor, the Servicers, the Special Servicer, the Trustee, the Certificate
Registrar or any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time by the
Depositor, the Servicers, the Special Servicer and the Trustee, without the
consent of any of the Certificateholders or the holder of any Serviced Pari
Passu Loan or Serviced B Note: to cure any ambiguity; to cause the provisions
therein to conform or be consistent with or in furtherance of the statements
made with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement in the Private Placement Memorandum or the Prospectus or to correct or
supplement any provisions therein or in the Pooling and Servicing Agreement,
that may be inconsistent with any other provision therein or in the Pooling and
Servicing Agreement, or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of (i) the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC (ii) each Grantor Trust as a grantor trust (at all
times that any Certificate is outstanding) or (iii) any trust fund in which a
Serviced Pari Passu Loan or Serviced B Note is included as a REMIC (at all times
that any related securities are outstanding) or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC pursuant to the Code that would be a claim against the Trust
Fund, the Lower-Tier REMIC or the Upper-Tier REMIC; provided that, the Trustee
has received an Opinion of Counsel addressed to the parties to the Pooling and
Servicing Agreement (at the expense of the party requesting the amendment) to
the effect that (a) such action is necessary or desirable to maintain such
qualification or to avoid or minimize the risk of the imposition of any such tax
and (b) such action will not adversely affect in any material respect the
interests of any Certificateholder or any holder of a related Serviced Pari
Passu Loan or Serviced B Note; to change the timing and/or nature of deposits
into the Certificate Account, any Serviced Whole Loan Custodial Account, the
Distribution Account or REO Account or to change the name in which the
Certificate Account or the Serviced Whole Loan Custodial Account is maintained,
provided that (a) the P&I Advance Date shall in no event be later than the
related Distribution Date, (b) such change shall not, as evidenced by an Opinion
of Counsel addressed to the parties to the Pooling and Servicing Agreement (at
the expense of the party requesting the amendment), adversely affect in any
material respect the interests of any Certificateholder or any holder of a
related Serviced Pari Passu Loan or Serviced B Note and (c) such change shall
not result in the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates or any Class of Serviced Pari Passu
Loan Securities, as evidenced by a letter from each Rating Agency to such
effect; to modify, eliminate or add to the provisions of Section 5.02(d) of the
Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," provided that, such change shall not, as evidenced by an
Opinion of Counsel addressed to the parties to the Pooling and Servicing
Agreement, cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or
any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement or any other change, provided that, such action shall not adversely
affect in any material respect the interests of any Certificateholder or any
holder of a related Serviced Pari Passu Loan or Serviced B Note not consenting
thereto as evidenced by an Opinion of Counsel or by written confirmation from
the Rating Agencies to the effect that the change would not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or any Class of Serviced Pari Passu Loan Securities;
and to amend or supplement any provision in the Pooling and Servicing Agreement
to the extent necessary to maintain the rating or ratings assigned to each Class
of Certificates by each applicable Rating Agency and any other applicable rating
agency; provided that, such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or any Class of Serviced Pari Passu Loan Securities, as evidenced
by a letter from each applicable Rating Agency and any other applicable rating
agency to such effect.
The Pooling and Servicing Agreement may also be amended from time to time by
the Depositor, the Servicers, the Special Servicer and the Trustee with the
consent of the Holders of Certificates evidencing in the aggregate not less than
66 2/3% of the Percentage Interests of each Class of Certificates affected
thereby for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Pooling and Servicing Agreement or of
modifying in any manner the rights of the Holders of Certificates of such Class;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate, or which are required to be
distributed to the holder of any Serviced Pari Passu Loan or Serviced B
Note without the consent of such holder of any Serviced Pari Passu Loan or
Serviced B Note; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding or the voting rights of the holder of any
Serviced Pari Passu Loan or Serviced B Note without the consent of such
holder of any Serviced Pari Passu Loan or Serviced B Note; or
(iv) modify the definition of Servicing Standard without the consent
of the Holders of all Certificates then outstanding and the consent of the
holder of any related Serviced Pari Passu Loan or Serviced B Note; or
(v) amend Section 11.01 of the Pooling and Servicing Agreement.
No amendment shall be made to the Pooling and Servicing Agreement unless the
Trustee shall have received an Opinion of Counsel that such amendment is
permitted under the Pooling and Servicing Agreement and will not cause the
Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, each
Grantor Trust to fail to qualify as a grantor trust, cause any trust fund in
which a Serviced Pari Passu Loan or Serviced B Note is included as a REMIC or
result in the imposition of a tax on the Trust Fund, the Upper-Tier REMIC or the
Lower-Tier REMIC.
The Sole Certificateholder will have the option, upon 60 days' prior notice
given to each of the parties to the Pooling and Servicing Agreement, which
notice the Trustee is required to promptly forward to Certificateholders and
Rating Agencies in the manner set forth in the Pooling and Servicing Agreement,
to exchange all of its Certificates (other than the Residual Certificates) for
all of the Mortgage Loans and each REO Property (or beneficial interest in the
Mortgaged Property under a Non-Serviced Mortgage Loan) remaining in the Trust
Fund, and thereby effect termination of the Trust Fund and early retirement of
the then outstanding Certificates, on any Distribution Date on which the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates is reduced
to zero.
If the Sole Certificateholder chooses not to exercise such right, or if the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates has not been
reduced to zero, the Servicers or the Special Servicer (in that order) will have
the option, upon 60 days' prior notice given to the Trustee and each of the
other parties to the Pooling and Servicing Agreement, which notice the Trustee
is required to promptly forward to Certificateholders and Rating Agencies in the
manner set forth in the Pooling and Servicing Agreement, to purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is less than 1% of
the aggregate Cut-off Date Principal Balance of all the Mortgage Loans.
Subject to Section 9.02 of the Pooling and Servicing Agreement, the
obligations created by the Pooling and Servicing Agreement and the Trust Fund
created thereby (other than the obligation of the Trustee to provide for and
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the United States to
the Court of St. ▇▇▇▇▇, living on the date hereof.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to
be duly executed under this official seal.
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar under
the Pooling and Servicing Agreement.
By:
------------------------------------
AUTHORIZED REPRESENTATIVE
Dated: May 8, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS J CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
-----------------------------------
AUTHORIZED REPRESENTATIVE
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or
upon transfer of, an interest in this Remaining Principal Amount of Notation
Date Book-Entry Certificate Book-Entry Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _______________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
__________________________________ account number _______________ or, if mailed
by check, to _______________________________________. Statements should be
mailed to _______________________________________________________________. This
information is provided by assignee named above, or ___________________________,
as its agent.
EXHIBIT A-20
GE COMMERCIAL MORTGAGE CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-C1, CLASS K
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
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 WHOM THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) (OTHER THAN WITH RESPECT TO A
RESIDUAL CERTIFICATE) 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, (D) (OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE OR AN
ERISA RESTRICTED CERTIFICATE (WITHOUT GIVING EFFECT TO CLAUSE (b)(ii) OF SUCH
DEFINITION)) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR
RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR (E) (OTHER THAN WITH
RESPECT TO A RESIDUAL CERTIFICATE) 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 REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
LAST TWO PAGES OF THIS CERTIFICATE.
THIS CLASS K CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
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 INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL
BUYER OR (OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE) AN INSTITUTIONAL
ACCREDITED INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL
IF SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A.
THE PASS-THROUGH RATE ON THE CLASS K CERTIFICATES APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF
WILL BE: (i) 5.9853% FOR THE INITIAL DISTRIBUTION THE MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND
DATE AND (ii) THE WEIGHTED AVERAGE NET MORTGAGE RATE PREPAYMENTS RECEIVED ON OR BEFORE CUT-OFF DATE:
FOR ANY DISTRIBUTION DATE AFTER THE INITIAL $3,953,465,462
DISTRIBUTION DATE
MASTER SERVICERS: KEYCORP REAL ESTATE CAPITAL MARKETS,
DENOMINATION: $54,360,000 INC. AND BANK OF AMERICA, NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SPECIAL SERVICER: LNR PARTNERS, INC.
MAY 1, 2007
TRUSTEE: ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: WITH RESPECT TO EACH MORTGAGE LOAN,
THE LATER OF MAY 1, 2007 OR THE DATE OF ORIGINATION
OF SUCH MORTGAGE LOAN (OR, WITH RESPECT TO LOAN NOS.
1 AND 16, MAY 5, 2007) CUSIP NO.: [_____]
CLOSING DATE: MAY 8, 2007 ISIN NO.: [______]
FIRST DISTRIBUTION DATE: CERTIFICATE NO.: K-1
JUNE 11, 2007
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS K CERTIFICATES
AS OF THE CLOSING DATE: $54,360,000
CLASS K CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing fixed rate balloon
and fully amortizing mortgage loans (the "Mortgage Loans"), all payments on or
collections in respect of the Mortgage Loans due after the Cut-off Date, all REO
Properties and revenues received in respect thereof, the mortgagee's rights
under the Insurance Policies, any Assignment of Leases, and any guaranties,
escrow accounts or other collateral as security for the Mortgage Loans and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Account, the Interest Reserve Account, the Excess Interest
Distribution Account and the REO Accounts, formed and sold by
GE COMMERCIAL MORTGAGE CORPORATION
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GE
COMMERCIAL MORTGAGE CORPORATION, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class K Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of May 1, 2007 (the "Pooling and Servicing
Agreement"), among GE Commercial Mortgage Corporation (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Servicers and the Special Servicer. A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated
as Certificates of the series specified on the face hereof (herein called the
"Certificates") and representing an interest in the Class of Certificates
specified on the face hereof equal to the quotient expressed as a percentage
obtained by dividing the Denomination of this Certificate specified on the face
hereof, by the aggregate initial Certificate Balance of the Class K
Certificates. The Certificates are designated as the GE Commercial Mortgage
Corporation, Commercial Mortgage Pass-Through Certificates, Series 2007-C1 and
are issued in thirty classes as specifically set forth in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduits," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee
shall distribute to the Person in whose name this Certificate is registered as
of the related Record Date, an amount equal to such Person's pro rata share
(based on the Percentage Interest represented by this Certificate) of that
portion of the aggregate amount of principal and interest then distributable, if
any, allocable to the Class of Certificates of the same Class as this
Certificate for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted
of 360 days and each month consisted of 30 days) during the Interest Accrual
Period relating to such Distribution Date at the Class K Pass-Through Rate
specified above on the Certificate Balance of this Certificate immediately prior
to each Distribution Date. Principal and interest allocated to this Certificate
on any Distribution Date will be in an amount due to this Certificate's pro rata
share of the Available Distribution Amount to be distributed on the Certificates
of this Class as of such Distribution Date, with a final distribution to be made
upon retirement of this Certificate as set forth in the Pooling and Servicing
Agreement.
Any Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. Any Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other things,
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Account will be held in the name of the Trustee, on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicers (with respect to the Certificate Account) or the Trustee (with respect
to the Distribution Account) will be authorized to make withdrawals therefrom.
Amounts on deposit in such accounts may be invested in Permitted Investments.
Interest or other income earned on funds (i) in the Certificate Account will be
paid to the Servicers and (ii) in the Distribution Account will be paid to the
Trustee as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account and
the Distribution Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class of
Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder has provided the Trustee with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity having appropriate facilities
therefor. The final distribution on this Certificate shall be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
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 Section 4.01(g) of the Pooling and Servicing Agreement shall
not have been surrendered for cancellation within six months after the time
specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders to surrender their Certificates for
cancellation in order to receive the final distribution with respect thereto. If
within one year after the second notice all such Certificates shall not have
been surrendered for cancellation, the Trustee, directly or through an agent,
shall take such steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it deems 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 under the Pooling and Servicing Agreement by the Trustee as
a result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with Section 4.01(g) of the Pooling and
Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register only upon surrender of this Certificate for
registration of transfer at the office of the Certificate Registrar, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney-in-fact duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized Denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class X-P
and Class X-C Certificates will be issued in book-entry form through the
facilities of DTC in Denominations of not less than $1,000,000 initial Notional
Amount and in integral multiples of $1 in excess thereof, with one Certificate
of such Class evidencing an additional amount equal to the remainder of the
initial Notional Amount of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Offered Certificates will be issued in book-entry form
through the facilities of DTC in Denominations of not less than $10,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. Subject to the terms
of the Pooling and Servicing Agreement, the Non-Registered Certificates (other
than the Class X Certificates and the Residual Certificates) will be issued in
book-entry form through the facilities of DTC in Denominations of not less than
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. The
Class R and Class LR Certificates will be issued in fully registered,
certificated form, in Denominations representing Percentage Interests of not
less than 20%.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) thereof. 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 in Section 5.02(b) of the Pooling and Servicing Agreement) incurred
by the Certificate Registrar in connection with such transfer. With respect to
any transfer or exchange of any Certificate, the Certificate Registrar may
require payment by each Transferor of a sum sufficient to cover any tax, expense
or other governmental charge payable in connection with any such transfer or
exchange.
The Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar and any of their agents may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
The Depositor, the Servicers, the Special Servicer, the Trustee, the Certificate
Registrar or any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time by the
Depositor, the Servicers, the Special Servicer and the Trustee, without the
consent of any of the Certificateholders or the holder of any Serviced Pari
Passu Loan or Serviced B Note: to cure any ambiguity; to cause the provisions
therein to conform or be consistent with or in furtherance of the statements
made with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement in the Private Placement Memorandum or the Prospectus or to correct or
supplement any provisions therein or in the Pooling and Servicing Agreement,
that may be inconsistent with any other provision therein or in the Pooling and
Servicing Agreement, or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of (i) the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC (ii) each Grantor Trust as a grantor trust (at all
times that any Certificate is outstanding) or (iii) any trust fund in which a
Serviced Pari Passu Loan or Serviced B Note is included as a REMIC (at all times
that any related securities are outstanding) or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC pursuant to the Code that would be a claim against the Trust
Fund, the Lower-Tier REMIC or the Upper-Tier REMIC; provided that, the Trustee
has received an Opinion of Counsel addressed to the parties to the Pooling and
Servicing Agreement (at the expense of the party requesting the amendment) to
the effect that (a) such action is necessary or desirable to maintain such
qualification or to avoid or minimize the risk of the imposition of any such tax
and (b) such action will not adversely affect in any material respect the
interests of any Certificateholder or any holder of a related Serviced Pari
Passu Loan or Serviced B Note; to change the timing and/or nature of deposits
into the Certificate Account, any Serviced Whole Loan Custodial Account, the
Distribution Account or REO Account or to change the name in which the
Certificate Account or the Serviced Whole Loan Custodial Account is maintained,
provided that (a) the P&I Advance Date shall in no event be later than the
related Distribution Date, (b) such change shall not, as evidenced by an Opinion
of Counsel addressed to the parties to the Pooling and Servicing Agreement (at
the expense of the party requesting the amendment), adversely affect in any
material respect the interests of any Certificateholder or any holder of a
related Serviced Pari Passu Loan or Serviced B Note and (c) such change shall
not result in the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates or any Class of Serviced Pari Passu
Loan Securities, as evidenced by a letter from each Rating Agency to such
effect; to modify, eliminate or add to the provisions of Section 5.02(d) of the
Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," provided that, such change shall not, as evidenced by an
Opinion of Counsel addressed to the parties to the Pooling and Servicing
Agreement, cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or
any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement or any other change, provided that, such action shall not adversely
affect in any material respect the interests of any Certificateholder or any
holder of a related Serviced Pari Passu Loan or Serviced B Note not consenting
thereto as evidenced by an Opinion of Counsel or by written confirmation from
the Rating Agencies to the effect that the change would not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or any Class of Serviced Pari Passu Loan Securities;
and to amend or supplement any provision in the Pooling and Servicing Agreement
to the extent necessary to maintain the rating or ratings assigned to each Class
of Certificates by each applicable Rating Agency and any other applicable rating
agency; provided that, such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or any Class of Serviced Pari Passu Loan Securities, as evidenced
by a letter from each applicable Rating Agency and any other applicable rating
agency to such effect.
The Pooling and Servicing Agreement may also be amended from time to time by
the Depositor, the Servicers, the Special Servicer and the Trustee with the
consent of the Holders of Certificates evidencing in the aggregate not less than
66 2/3% of the Percentage Interests of each Class of Certificates affected
thereby for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Pooling and Servicing Agreement or of
modifying in any manner the rights of the Holders of Certificates of such Class;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate, or which are required to be
distributed to the holder of any Serviced Pari Passu Loan or Serviced B
Note without the consent of such holder of any Serviced Pari Passu Loan or
Serviced B Note; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding or the voting rights of the holder of any
Serviced Pari Passu Loan or Serviced B Note without the consent of such
holder of any Serviced Pari Passu Loan or Serviced B Note; or
(iv) modify the definition of Servicing Standard without the consent
of the Holders of all Certificates then outstanding and the consent of the
holder of any related Serviced Pari Passu Loan or Serviced B Note; or
(v) amend Section 11.01 of the Pooling and Servicing Agreement.
No amendment shall be made to the Pooling and Servicing Agreement unless the
Trustee shall have received an Opinion of Counsel that such amendment is
permitted under the Pooling and Servicing Agreement and will not cause the
Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, each
Grantor Trust to fail to qualify as a grantor trust, cause any trust fund in
which a Serviced Pari Passu Loan or Serviced B Note is included as a REMIC or
result in the imposition of a tax on the Trust Fund, the Upper-Tier REMIC or the
Lower-Tier REMIC.
The Sole Certificateholder will have the option, upon 60 days' prior notice
given to each of the parties to the Pooling and Servicing Agreement, which
notice the Trustee is required to promptly forward to Certificateholders and
Rating Agencies in the manner set forth in the Pooling and Servicing Agreement,
to exchange all of its Certificates (other than the Residual Certificates) for
all of the Mortgage Loans and each REO Property (or beneficial interest in the
Mortgaged Property under a Non-Serviced Mortgage Loan) remaining in the Trust
Fund, and thereby effect termination of the Trust Fund and early retirement of
the then outstanding Certificates, on any Distribution Date on which the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates is reduced
to zero.
If the Sole Certificateholder chooses not to exercise such right, or if the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates has not been
reduced to zero, the Servicers or the Special Servicer (in that order) will have
the option, upon 60 days' prior notice given to the Trustee and each of the
other parties to the Pooling and Servicing Agreement, which notice the Trustee
is required to promptly forward to Certificateholders and Rating Agencies in the
manner set forth in the Pooling and Servicing Agreement, to purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is less than 1% of
the aggregate Cut-off Date Principal Balance of all the Mortgage Loans.
Subject to Section 9.02 of the Pooling and Servicing Agreement, the
obligations created by the Pooling and Servicing Agreement and the Trust Fund
created thereby (other than the obligation of the Trustee to provide for and
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the United States to
the Court of St. ▇▇▇▇▇, living on the date hereof.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to
be duly executed under this official seal.
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar under
the Pooling and Servicing Agreement.
By:
------------------------------------
AUTHORIZED REPRESENTATIVE
Dated: May 8, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS K CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
-----------------------------------
AUTHORIZED REPRESENTATIVE
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or
upon transfer of, an interest in this Remaining Principal Amount of Notation
Date Book-Entry Certificate Book-Entry Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _______________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
__________________________________ account number _______________ or, if mailed
by check, to _______________________________________. Statements should be
mailed to _______________________________________________________________. This
information is provided by assignee named above, or ___________________________,
as its agent.
EXHIBIT A-21
GE COMMERCIAL MORTGAGE CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-C1, CLASS L
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
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 WHOM THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) (OTHER THAN WITH RESPECT TO A
RESIDUAL CERTIFICATE) 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, (D) (OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE OR AN
ERISA RESTRICTED CERTIFICATE (WITHOUT GIVING EFFECT TO CLAUSE (b)(ii) OF SUCH
DEFINITION)) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR
RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR (E) (OTHER THAN WITH
RESPECT TO A RESIDUAL CERTIFICATE) 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 REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
LAST TWO PAGES OF THIS CERTIFICATE.
THIS CLASS L CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
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.
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 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 A PLAN OR PLANS 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 THIS
CERTIFICATE BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER SECTIONS I AND III OF
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS
PRESENTED FOR REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSE (i) OR
CLAUSE (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 SERVICERS, THE
SPECIAL SERVICER, THE INITIAL PURCHASERS, THE PLACEMENT AGENTS 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. 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 CLAUSE (i) OR CLAUSE (ii) ABOVE.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL
BUYER OR (OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE) AN INSTITUTIONAL
ACCREDITED INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL
IF SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A.
THE PASS-THROUGH RATE ON THE CLASS L CERTIFICATES APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF
WILL BE THE LESSER OF (i) 5.1800% AND (ii) THE THE MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND
WEIGHTED AVERAGE NET MORTGAGE RATE FOR ANY PREPAYMENTS RECEIVED ON OR BEFORE CUT-OFF DATE:
DISTRIBUTION DATE. $3,953,465,462
DENOMINATION: $9,884,000 MASTER SERVICERS: KEYCORP REAL ESTATE CAPITAL MARKETS,
INC. AND BANK OF AMERICA, NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF
MAY 1, 2007 SPECIAL SERVICER: LNR PARTNERS, INC.
CUT-OFF DATE: WITH RESPECT TO EACH MORTGAGE LOAN, TRUSTEE: ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
THE LATER OF MAY 1, 2007 OR THE DATE OF ORIGINATION
OF SUCH MORTGAGE LOAN (OR, WITH RESPECT TO LOAN NOS.
1 AND 16, MAY 5, 2007)
CUSIP NO.: [____]
CLOSING DATE: MAY 8, 2007
ISIN NO.: [____]
FIRST DISTRIBUTION DATE:
JUNE 11, 2007 CERTIFICATE NO.: L-1
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS L CERTIFICATES
AS OF THE CLOSING DATE: $9,884,000
CLASS L CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing fixed rate balloon
and fully amortizing mortgage loans (the "Mortgage Loans"), all payments on or
collections in respect of the Mortgage Loans due after the Cut-off Date, all REO
Properties and revenues received in respect thereof, the mortgagee's rights
under the Insurance Policies, any Assignment of Leases, and any guaranties,
escrow accounts or other collateral as security for the Mortgage Loans and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Account, the Interest Reserve Account, the Excess Interest
Distribution Account and the REO Accounts, formed and sold by
GE COMMERCIAL MORTGAGE CORPORATION
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GE
COMMERCIAL MORTGAGE CORPORATION, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class L Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of May 1, 2007 (the "Pooling and Servicing
Agreement"), among GE Commercial Mortgage Corporation (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Servicers and the Special Servicer. A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated
as Certificates of the series specified on the face hereof (herein called the
"Certificates") and representing an interest in the Class of Certificates
specified on the face hereof equal to the quotient expressed as a percentage
obtained by dividing the Denomination of this Certificate specified on the face
hereof, by the aggregate initial Certificate Balance of the Class L
Certificates. The Certificates are designated as the GE Commercial Mortgage
Corporation, Commercial Mortgage Pass-Through Certificates, Series 2007-C1 and
are issued in thirty classes as specifically set forth in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee
shall distribute to the Person in whose name this Certificate is registered as
of the related Record Date, an amount equal to such Person's pro rata share
(based on the Percentage Interest represented by this Certificate) of that
portion of the aggregate amount of principal and interest then distributable, if
any, allocable to the Class of Certificates of the same Class as this
Certificate for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted
of 360 days and each month consisted of 30 days) during the Interest Accrual
Period relating to such Distribution Date at the Class L Pass-Through Rate
specified above on the Certificate Balance of this Certificate immediately prior
to each Distribution Date. Principal and interest allocated to this Certificate
on any Distribution Date will be in an amount due to this Certificate's pro rata
share of the Available Distribution Amount to be distributed on the Certificates
of this Class as of such Distribution Date, with a final distribution to be made
upon retirement of this Certificate as set forth in the Pooling and Servicing
Agreement.
Any Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. Any Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other things,
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Account will be held in the name of the Trustee, on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicers (with respect to the Certificate Account) or the Trustee (with respect
to the Distribution Account) will be authorized to make withdrawals therefrom.
Amounts on deposit in such accounts may be invested in Permitted Investments.
Interest or other income earned on funds (i) in the Certificate Account will be
paid to the Servicers and (ii) in the Distribution Account will be paid to the
Trustee as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account and
the Distribution Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class of
Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder has provided the Trustee with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity having appropriate facilities
therefor. The final distribution on this Certificate shall be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
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 Section 4.01(g) of the Pooling and Servicing Agreement shall
not have been surrendered for cancellation within six months after the time
specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders to surrender their Certificates for
cancellation in order to receive the final distribution with respect thereto. If
within one year after the second notice all such Certificates shall not have
been surrendered for cancellation, the Trustee, directly or through an agent,
shall take such steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it deems 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 under the Pooling and Servicing Agreement by the Trustee as
a result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with Section 4.01(g) of the Pooling and
Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register only upon surrender of this Certificate for
registration of transfer at the office of the Certificate Registrar, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney-in-fact duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized Denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class X-P
and Class X-C Certificates will be issued in book-entry form through the
facilities of DTC in Denominations of not less than $1,000,000 initial Notional
Amount and in integral multiples of $1 in excess thereof, with one Certificate
of such Class evidencing an additional amount equal to the remainder of the
initial Notional Amount of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Offered Certificates will be issued in book-entry form
through the facilities of DTC in Denominations of not less than $10,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. Subject to the terms
of the Pooling and Servicing Agreement, the Non-Registered Certificates (other
than the Class X Certificates and the Residual Certificates) will be issued in
book-entry form through the facilities of DTC in Denominations of not less than
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. The
Class R and Class LR Certificates will be issued in fully registered,
certificated form, in Denominations representing Percentage Interests of not
less than 20%.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) thereof. 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 in Section 5.02(b) of the Pooling and Servicing Agreement) incurred
by the Certificate Registrar in connection with such transfer. With respect to
any transfer or exchange of any Certificate, the Certificate Registrar may
require payment by each Transferor of a sum sufficient to cover any tax, expense
or other governmental charge payable in connection with any such transfer or
exchange.
The Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar and any of their agents may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
The Depositor, the Servicers, the Special Servicer, the Trustee, the Certificate
Registrar or any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time by the
Depositor, the Servicers, the Special Servicer and the Trustee, without the
consent of any of the Certificateholders or the holder of any Serviced Pari
Passu Loan or Serviced B Note: to cure any ambiguity; to cause the provisions
therein to conform or be consistent with or in furtherance of the statements
made with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement in the Private Placement Memorandum or the Prospectus or to correct or
supplement any provisions therein or in the Pooling and Servicing Agreement,
that may be inconsistent with any other provision therein or in the Pooling and
Servicing Agreement, or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of (i) the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC (ii) each Grantor Trust as a grantor trust (at all
times that any Certificate is outstanding) or (iii) any trust fund in which a
Serviced Pari Passu Loan or Serviced B Note is included as a REMIC (at all times
that any related securities are outstanding) or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC pursuant to the Code that would be a claim against the Trust
Fund, the Lower-Tier REMIC or the Upper-Tier REMIC; provided that, the Trustee
has received an Opinion of Counsel addressed to the parties to the Pooling and
Servicing Agreement (at the expense of the party requesting the amendment) to
the effect that (a) such action is necessary or desirable to maintain such
qualification or to avoid or minimize the risk of the imposition of any such tax
and (b) such action will not adversely affect in any material respect the
interests of any Certificateholder or any holder of a related Serviced Pari
Passu Loan or Serviced B Note; to change the timing and/or nature of deposits
into the Certificate Account, any Serviced Whole Loan Custodial Account, the
Distribution Account or REO Account or to change the name in which the
Certificate Account or the Serviced Whole Loan Custodial Account is maintained,
provided that (a) the P&I Advance Date shall in no event be later than the
related Distribution Date, (b) such change shall not, as evidenced by an Opinion
of Counsel addressed to the parties to the Pooling and Servicing Agreement (at
the expense of the party requesting the amendment), adversely affect in any
material respect the interests of any Certificateholder or any holder of a
related Serviced Pari Passu Loan or Serviced B Note and (c) such change shall
not result in the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates or any Class of Serviced Pari Passu
Loan Securities, as evidenced by a letter from each Rating Agency to such
effect; to modify, eliminate or add to the provisions of Section 5.02(d) of the
Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," provided that, such change shall not, as evidenced by an
Opinion of Counsel addressed to the parties to the Pooling and Servicing
Agreement, cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or
any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement or any other change, provided that, such action shall not adversely
affect in any material respect the interests of any Certificateholder or any
holder of a related Serviced Pari Passu Loan or Serviced B Note not consenting
thereto as evidenced by an Opinion of Counsel or by written confirmation from
the Rating Agencies to the effect that the change would not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or any Class of Serviced Pari Passu Loan Securities;
and to amend or supplement any provision in the Pooling and Servicing Agreement
to the extent necessary to maintain the rating or ratings assigned to each Class
of Certificates by each applicable Rating Agency and any other applicable rating
agency; provided that, such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or any Class of Serviced Pari Passu Loan Securities, as evidenced
by a letter from each applicable Rating Agency and any other applicable rating
agency to such effect.
The Pooling and Servicing Agreement may also be amended from time to time by
the Depositor, the Servicers, the Special Servicer and the Trustee with the
consent of the Holders of Certificates evidencing in the aggregate not less than
66 2/3% of the Percentage Interests of each Class of Certificates affected
thereby for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Pooling and Servicing Agreement or of
modifying in any manner the rights of the Holders of Certificates of such Class;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate, or which are required to be
distributed to the holder of any Serviced Pari Passu Loan or Serviced B
Note without the consent of such holder of any Serviced Pari Passu Loan or
Serviced B Note; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding or the voting rights of the holder of any
Serviced Pari Passu Loan or Serviced B Note without the consent of such
holder of any Serviced Pari Passu Loan or Serviced B Note; or
(iv) modify the definition of Servicing Standard without the consent
of the Holders of all Certificates then outstanding and the consent of the
holder of any related Serviced Pari Passu Loan or Serviced B Note; or
(v) amend Section 11.01 of the Pooling and Servicing Agreement.
No amendment shall be made to the Pooling and Servicing Agreement unless the
Trustee shall have received an Opinion of Counsel that such amendment is
permitted under the Pooling and Servicing Agreement and will not cause the
Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, each
Grantor Trust to fail to qualify as a grantor trust, cause any trust fund in
which a Serviced Pari Passu Loan or Serviced B Note is included as a REMIC or
result in the imposition of a tax on the Trust Fund, the Upper-Tier REMIC or the
Lower-Tier REMIC.
The Sole Certificateholder will have the option, upon 60 days' prior notice
given to each of the parties to the Pooling and Servicing Agreement, which
notice the Trustee is required to promptly forward to Certificateholders and
Rating Agencies in the manner set forth in the Pooling and Servicing Agreement,
to exchange all of its Certificates (other than the Residual Certificates) for
all of the Mortgage Loans and each REO Property (or beneficial interest in the
Mortgaged Property under a Non-Serviced Mortgage Loan) remaining in the Trust
Fund, and thereby effect termination of the Trust Fund and early retirement of
the then outstanding Certificates, on any Distribution Date on which the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates is reduced
to zero.
If the Sole Certificateholder chooses not to exercise such right, or if the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates has not been
reduced to zero, the Servicers or the Special Servicer (in that order) will have
the option, upon 60 days' prior notice given to the Trustee and each of the
other parties to the Pooling and Servicing Agreement, which notice the Trustee
is required to promptly forward to Certificateholders and Rating Agencies in the
manner set forth in the Pooling and Servicing Agreement, to purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is less than 1% of
the aggregate Cut-off Date Principal Balance of all the Mortgage Loans.
Subject to Section 9.02 of the Pooling and Servicing Agreement, the
obligations created by the Pooling and Servicing Agreement and the Trust Fund
created thereby (other than the obligation of the Trustee to provide for and
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the United States to
the Court of St. ▇▇▇▇▇, living on the date hereof.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to
be duly executed under this official seal.
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar under
the Pooling and Servicing Agreement.
By:
------------------------------------
AUTHORIZED REPRESENTATIVE
Dated: May 8, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS L CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
-----------------------------------
AUTHORIZED REPRESENTATIVE
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or
upon transfer of, an interest in this Remaining Principal Amount of Notation
Date Book-Entry Certificate Book-Entry Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _______________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
__________________________________ account number _______________ or, if mailed
by check, to _______________________________________. Statements should be
mailed to _______________________________________________________________. This
information is provided by assignee named above, or ___________________________,
as its agent.
EXHIBIT A-22
GE COMMERCIAL MORTGAGE CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-C1, CLASS M
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
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 WHOM THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) (OTHER THAN WITH RESPECT TO A
RESIDUAL CERTIFICATE) 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, (D) (OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE OR AN
ERISA RESTRICTED CERTIFICATE (WITHOUT GIVING EFFECT TO CLAUSE (b)(ii) OF SUCH
DEFINITION)) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR
RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR (E) (OTHER THAN WITH
RESPECT TO A RESIDUAL CERTIFICATE) 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 REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
LAST TWO PAGES OF THIS CERTIFICATE.
THIS CLASS M CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
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.
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 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 A PLAN OR PLANS 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 THIS
CERTIFICATE BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER SECTIONS I AND III OF
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS
PRESENTED FOR REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSE (i) OR
CLAUSE (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 SERVICERS, THE
SPECIAL SERVICER, THE INITIAL PURCHASERS, THE PLACEMENT AGENTS 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. 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 CLAUSE (i) OR CLAUSE (ii) ABOVE.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL
BUYER OR (OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE) AN INSTITUTIONAL
ACCREDITED INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL
IF SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A.
THE PASS-THROUGH RATE ON THE CLASS M CERTIFICATES APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF
WILL BE THE LESSER OF (i) 5.1800% AND (ii) THE THE MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND
WEIGHTED AVERAGE NET MORTGAGE RATE FOR ANY PREPAYMENTS RECEIVED ON OR BEFORE CUT-OFF DATE:
DISTRIBUTION DATE $3,953,465,462
DENOMINATION: $14,825,000 MASTER SERVICERS: KEYCORP REAL ESTATE CAPITAL MARKETS,
INC. AND BANK OF AMERICA, NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF
MAY 1, 2007 SPECIAL SERVICER: LNR PARTNERS, INC.
CUT-OFF DATE: WITH RESPECT TO EACH MORTGAGE LOAN, TRUSTEE: ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
THE LATER OF MAY 1, 2007 OR THE DATE OF ORIGINATION
OF SUCH MORTGAGE LOAN (OR, WITH RESPECT TO LOAN NOS.
1 AND 16, MAY 5, 2007)
CUSIP NO.: [____]
CLOSING DATE: MAY 8, 2007
ISIN NO.: [____]
FIRST DISTRIBUTION DATE:
JUNE 11, 2007 CERTIFICATE NO.: M-1
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS M CERTIFICATES
AS OF THE CLOSING DATE: $14,825,000
CLASS M CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing fixed rate balloon
and fully amortizing mortgage loans (the "Mortgage Loans"), all payments on or
collections in respect of the Mortgage Loans due after the Cut-off Date, all REO
Properties and revenues received in respect thereof, the mortgagee's rights
under the Insurance Policies, any Assignment of Leases, and any guaranties,
escrow accounts or other collateral as security for the Mortgage Loans and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Account, the Interest Reserve Account, the Excess Interest
Distribution Account and the REO Accounts, formed and sold by
GE COMMERCIAL MORTGAGE CORPORATION
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GE
COMMERCIAL MORTGAGE CORPORATION, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class M Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of May 1, 2007 (the "Pooling and Servicing
Agreement"), among GE Commercial Mortgage Corporation (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Servicers and the Special Servicer. A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated
as Certificates of the series specified on the face hereof (herein called the
"Certificates") and representing an interest in the Class of Certificates
specified on the face hereof equal to the quotient expressed as a percentage
obtained by dividing the Denomination of this Certificate specified on the face
hereof, by the aggregate initial Certificate Balance of the Class M
Certificates. The Certificates are designated as the GE Commercial Mortgage
Corporation, Commercial Mortgage Pass-Through Certificates, Series 2007-C1 and
are issued in thirty classes as specifically set forth in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee
shall distribute to the Person in whose name this Certificate is registered as
of the related Record Date, an amount equal to such Person's pro rata share
(based on the Percentage Interest represented by this Certificate) of that
portion of the aggregate amount of principal and interest then distributable, if
any, allocable to the Class of Certificates of the same Class as this
Certificate for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted
of 360 days and each month consisted of 30 days) during the Interest Accrual
Period relating to such Distribution Date at the Class M Pass-Through Rate
specified above on the Certificate Balance of this Certificate immediately prior
to each Distribution Date. Principal and interest allocated to this Certificate
on any Distribution Date will be in an amount due to this Certificate's pro rata
share of the Available Distribution Amount to be distributed on the Certificates
of this Class as of such Distribution Date, with a final distribution to be made
upon retirement of this Certificate as set forth in the Pooling and Servicing
Agreement.
Any Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. Any Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other things,
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Account will be held in the name of the Trustee, on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicers (with respect to the Certificate Account) or the Trustee (with respect
to the Distribution Account) will be authorized to make withdrawals therefrom.
Amounts on deposit in such accounts may be invested in Permitted Investments.
Interest or other income earned on funds (i) in the Certificate Account will be
paid to the Servicers and (ii) in the Distribution Account will be paid to the
Trustee as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account and
the Distribution Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class of
Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder has provided the Trustee with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity having appropriate facilities
therefor. The final distribution on this Certificate shall be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
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 Section 4.01(g) of the Pooling and Servicing Agreement shall
not have been surrendered for cancellation within six months after the time
specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders to surrender their Certificates for
cancellation in order to receive the final distribution with respect thereto. If
within one year after the second notice all such Certificates shall not have
been surrendered for cancellation, the Trustee, directly or through an agent,
shall take such steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it deems 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 under the Pooling and Servicing Agreement by the Trustee as
a result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with Section 4.01(g) of the Pooling and
Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register only upon surrender of this Certificate for
registration of transfer at the office of the Certificate Registrar, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney-in-fact duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized Denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class X-P
and Class X-C Certificates will be issued in book-entry form through the
facilities of DTC in Denominations of not less than $1,000,000 initial Notional
Amount and in integral multiples of $1 in excess thereof, with one Certificate
of such Class evidencing an additional amount equal to the remainder of the
initial Notional Amount of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Offered Certificates will be issued in book-entry form
through the facilities of DTC in Denominations of not less than $10,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. Subject to the terms
of the Pooling and Servicing Agreement, the Non-Registered Certificates (other
than the Class X Certificates and the Residual Certificates) will be issued in
book-entry form through the facilities of DTC in Denominations of not less than
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. The
Class R and Class LR Certificates will be issued in fully registered,
certificated form, in Denominations representing Percentage Interests of not
less than 20%.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) thereof. 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 in Section 5.02(b) of the Pooling and Servicing Agreement) incurred
by the Certificate Registrar in connection with such transfer. With respect to
any transfer or exchange of any Certificate, the Certificate Registrar may
require payment by each Transferor of a sum sufficient to cover any tax, expense
or other governmental charge payable in connection with any such transfer or
exchange.
The Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar and any of their agents may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
The Depositor, the Servicers, the Special Servicer, the Trustee, the Certificate
Registrar or any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time by the
Depositor, the Servicers, the Special Servicer and the Trustee, without the
consent of any of the Certificateholders or the holder of any Serviced Pari
Passu Loan or Serviced B Note: to cure any ambiguity; to cause the provisions
therein to conform or be consistent with or in furtherance of the statements
made with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement in the Private Placement Memorandum or the Prospectus or to correct or
supplement any provisions therein or in the Pooling and Servicing Agreement,
that may be inconsistent with any other provision therein or in the Pooling and
Servicing Agreement, or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of (i) the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC (ii) each Grantor Trust as a grantor trust (at all
times that any Certificate is outstanding) or (iii) any trust fund in which a
Serviced Pari Passu Loan or Serviced B Note is included as a REMIC (at all times
that any related securities are outstanding) or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC pursuant to the Code that would be a claim against the Trust
Fund, the Lower-Tier REMIC or the Upper-Tier REMIC; provided that, the Trustee
has received an Opinion of Counsel addressed to the parties to the Pooling and
Servicing Agreement (at the expense of the party requesting the amendment) to
the effect that (a) such action is necessary or desirable to maintain such
qualification or to avoid or minimize the risk of the imposition of any such tax
and (b) such action will not adversely affect in any material respect the
interests of any Certificateholder or any holder of a related Serviced Pari
Passu Loan or Serviced B Note; to change the timing and/or nature of deposits
into the Certificate Account, any Serviced Whole Loan Custodial Account, the
Distribution Account or REO Account or to change the name in which the
Certificate Account or the Serviced Whole Loan Custodial Account is maintained,
provided that (a) the P&I Advance Date shall in no event be later than the
related Distribution Date, (b) such change shall not, as evidenced by an Opinion
of Counsel addressed to the parties to the Pooling and Servicing Agreement (at
the expense of the party requesting the amendment), adversely affect in any
material respect the interests of any Certificateholder or any holder of a
related Serviced Pari Passu Loan or Serviced B Note and (c) such change shall
not result in the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates or any Class of Serviced Pari Passu
Loan Securities, as evidenced by a letter from each Rating Agency to such
effect; to modify, eliminate or add to the provisions of Section 5.02(d) of the
Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," provided that, such change shall not, as evidenced by an
Opinion of Counsel addressed to the parties to the Pooling and Servicing
Agreement, cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or
any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement or any other change, provided that, such action shall not adversely
affect in any material respect the interests of any Certificateholder or any
holder of a related Serviced Pari Passu Loan or Serviced B Note not consenting
thereto as evidenced by an Opinion of Counsel or by written confirmation from
the Rating Agencies to the effect that the change would not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or any Class of Serviced Pari Passu Loan Securities;
and to amend or supplement any provision in the Pooling and Servicing Agreement
to the extent necessary to maintain the rating or ratings assigned to each Class
of Certificates by each applicable Rating Agency and any other applicable rating
agency; provided that, such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or any Class of Serviced Pari Passu Loan Securities, as evidenced
by a letter from each applicable Rating Agency and any other applicable rating
agency to such effect.
The Pooling and Servicing Agreement may also be amended from time to time by
the Depositor, the Servicers, the Special Servicer and the Trustee with the
consent of the Holders of Certificates evidencing in the aggregate not less than
66 2/3% of the Percentage Interests of each Class of Certificates affected
thereby for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Pooling and Servicing Agreement or of
modifying in any manner the rights of the Holders of Certificates of such Class;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate, or which are required to be
distributed to the holder of any Serviced Pari Passu Loan or Serviced B
Note without the consent of such holder of any Serviced Pari Passu Loan or
Serviced B Note; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding or the voting rights of the holder of any
Serviced Pari Passu Loan or Serviced B Note without the consent of such
holder of any Serviced Pari Passu Loan or Serviced B Note; or
(iv) modify the definition of Servicing Standard without the consent
of the Holders of all Certificates then outstanding and the consent of the
holder of any related Serviced Pari Passu Loan or Serviced B Note; or
(v) amend Section 11.01 of the Pooling and Servicing Agreement.
No amendment shall be made to the Pooling and Servicing Agreement unless the
Trustee shall have received an Opinion of Counsel that such amendment is
permitted under the Pooling and Servicing Agreement and will not cause the
Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, each
Grantor Trust to fail to qualify as a grantor trust, cause any trust fund in
which a Serviced Pari Passu Loan or Serviced B Note is included as a REMIC or
result in the imposition of a tax on the Trust Fund, the Upper-Tier REMIC or the
Lower-Tier REMIC.
The Sole Certificateholder will have the option, upon 60 days' prior notice
given to each of the parties to the Pooling and Servicing Agreement, which
notice the Trustee is required to promptly forward to Certificateholders and
Rating Agencies in the manner set forth in the Pooling and Servicing Agreement,
to exchange all of its Certificates (other than the Residual Certificates) for
all of the Mortgage Loans and each REO Property (or beneficial interest in the
Mortgaged Property under a Non-Serviced Mortgage Loan) remaining in the Trust
Fund, and thereby effect termination of the Trust Fund and early retirement of
the then outstanding Certificates, on any Distribution Date on which the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates is reduced
to zero.
If the Sole Certificateholder chooses not to exercise such right, or if the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates has not been
reduced to zero, the Servicers or the Special Servicer (in that order) will have
the option, upon 60 days' prior notice given to the Trustee and each of the
other parties to the Pooling and Servicing Agreement, which notice the Trustee
is required to promptly forward to Certificateholders and Rating Agencies in the
manner set forth in the Pooling and Servicing Agreement, to purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is less than 1% of
the aggregate Cut-off Date Principal Balance of all the Mortgage Loans.
Subject to Section 9.02 of the Pooling and Servicing Agreement, the
obligations created by the Pooling and Servicing Agreement and the Trust Fund
created thereby (other than the obligation of the Trustee to provide for and
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the United States to
the Court of St. ▇▇▇▇▇, living on the date hereof.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to
be duly executed under this official seal.
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar under
the Pooling and Servicing Agreement.
By:
------------------------------------
AUTHORIZED REPRESENTATIVE
Dated: May 8, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS M CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
-----------------------------------
AUTHORIZED REPRESENTATIVE
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or
upon transfer of, an interest in this Remaining Principal Amount of Notation
Date Book-Entry Certificate Book-Entry Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _______________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
__________________________________ account number _______________ or, if mailed
by check, to _______________________________________. Statements should be
mailed to _______________________________________________________________. This
information is provided by assignee named above, or ___________________________,
as its agent.
EXHIBIT A-23
GE COMMERCIAL MORTGAGE CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-C1, CLASS N
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
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 WHOM THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) (OTHER THAN WITH RESPECT TO A
RESIDUAL CERTIFICATE) 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, (D) (OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE OR AN
ERISA RESTRICTED CERTIFICATE (WITHOUT GIVING EFFECT TO CLAUSE (b)(ii) OF SUCH
DEFINITION)) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR
RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR (E) (OTHER THAN WITH
RESPECT TO A RESIDUAL CERTIFICATE) 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 REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
LAST TWO PAGES OF THIS CERTIFICATE.
THIS CLASS N CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
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.
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 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 A PLAN OR PLANS 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 THIS
CERTIFICATE BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER SECTIONS I AND III OF
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS
PRESENTED FOR REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSE (i) OR
CLAUSE (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 SERVICERS, THE
SPECIAL SERVICER, THE INITIAL PURCHASERS, THE PLACEMENT AGENTS 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. 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 CLAUSE (i) OR CLAUSE (ii) ABOVE.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL
BUYER OR (OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE) AN INSTITUTIONAL
ACCREDITED INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL
IF SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A.
THE PASS-THROUGH RATE ON THE CLASS N CERTIFICATES APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF
WILL BE THE LESSER OF (i) 5.1800% AND (ii) THE THE MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND
WEIGHTED AVERAGE NET MORTGAGE RATE FOR ANY PREPAYMENTS RECEIVED ON OR BEFORE CUT-OFF DATE:
DISTRIBUTION DATE $3,953,465,462
DENOMINATION: $9,884,000 MASTER SERVICERS: KEYCORP REAL ESTATE CAPITAL MARKETS,
INC. AND BANK OF AMERICA, NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF
MAY 1, 2007 SPECIAL SERVICER: LNR PARTNERS, INC.
CUT-OFF DATE: WITH RESPECT TO EACH MORTGAGE LOAN, TRUSTEE: ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
THE LATER OF MAY 1, 2007 OR THE DATE OF ORIGINATION
OF SUCH MORTGAGE LOAN (OR, WITH RESPECT TO LOAN NOS.
1 AND 16, MAY 5, 2007)
CUSIP NO.: [____]
CLOSING DATE: MAY 8, 2007
ISIN NO.: [___]
FIRST DISTRIBUTION DATE:
JUNE 11, 2007 CERTIFICATE NO.: N-1
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS N CERTIFICATES
AS OF THE CLOSING DATE: $9,884,000
CLASS N CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing fixed rate balloon
and fully amortizing mortgage loans (the "Mortgage Loans"), all payments on or
collections in respect of the Mortgage Loans due after the Cut-off Date, all REO
Properties and revenues received in respect thereof, the mortgagee's rights
under the Insurance Policies, any Assignment of Leases, and any guaranties,
escrow accounts or other collateral as security for the Mortgage Loans and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Account, the Interest Reserve Account, the Excess Interest
Distribution Account and the REO Accounts, formed and sold by
GE COMMERCIAL MORTGAGE CORPORATION
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GE
COMMERCIAL MORTGAGE CORPORATION, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class N Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of May 1, 2007 (the "Pooling and Servicing
Agreement"), among GE Commercial Mortgage Corporation (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Servicers and the Special Servicer. A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated
as Certificates of the series specified on the face hereof (herein called the
"Certificates") and representing an interest in the Class of Certificates
specified on the face hereof equal to the quotient expressed as a percentage
obtained by dividing the Denomination of this Certificate specified on the face
hereof, by the aggregate initial Certificate Balance of the Class N
Certificates. The Certificates are designated as the GE Commercial Mortgage
Corporation, Commercial Mortgage Pass-Through Certificates, Series 2007-C1 and
are issued in thirty classes as specifically set forth in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee
shall distribute to the Person in whose name this Certificate is registered as
of the related Record Date, an amount equal to such Person's pro rata share
(based on the Percentage Interest represented by this Certificate) of that
portion of the aggregate amount of principal and interest then distributable, if
any, allocable to the Class of Certificates of the same Class as this
Certificate for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted
of 360 days and each month consisted of 30 days) during the Interest Accrual
Period relating to such Distribution Date at the Class N Pass-Through Rate
specified above on the Certificate Balance of this Certificate immediately prior
to each Distribution Date. Principal and interest allocated to this Certificate
on any Distribution Date will be in an amount due to this Certificate's pro rata
share of the Available Distribution Amount to be distributed on the Certificates
of this Class as of such Distribution Date, with a final distribution to be made
upon retirement of this Certificate as set forth in the Pooling and Servicing
Agreement.
Any Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. Any Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other things,
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Account will be held in the name of the Trustee, on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicers (with respect to the Certificate Account) or the Trustee (with respect
to the Distribution Account) will be authorized to make withdrawals therefrom.
Amounts on deposit in such accounts may be invested in Permitted Investments.
Interest or other income earned on funds (i) in the Certificate Account will be
paid to the Servicers and (ii) in the Distribution Account will be paid to the
Trustee as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account and
the Distribution Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class of
Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder has provided the Trustee with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity having appropriate facilities
therefor. The final distribution on this Certificate shall be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
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 Section 4.01(g) of the Pooling and Servicing Agreement shall
not have been surrendered for cancellation within six months after the time
specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders to surrender their Certificates for
cancellation in order to receive the final distribution with respect thereto. If
within one year after the second notice all such Certificates shall not have
been surrendered for cancellation, the Trustee, directly or through an agent,
shall take such steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it deems 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 under the Pooling and Servicing Agreement by the Trustee as
a result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with Section 4.01(g) of the Pooling and
Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register only upon surrender of this Certificate for
registration of transfer at the office of the Certificate Registrar, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney-in-fact duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized Denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class X-P
and Class X-C Certificates will be issued in book-entry form through the
facilities of DTC in Denominations of not less than $1,000,000 initial Notional
Amount and in integral multiples of $1 in excess thereof, with one Certificate
of such Class evidencing an additional amount equal to the remainder of the
initial Notional Amount of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Offered Certificates will be issued in book-entry form
through the facilities of DTC in Denominations of not less than $10,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. Subject to the terms
of the Pooling and Servicing Agreement, the Non-Registered Certificates (other
than the Class X Certificates and the Residual Certificates) will be issued in
book-entry form through the facilities of DTC in Denominations of $250,000
initial Certificate Balance, and in integral multiples of $1 in excess thereof,
with one Certificate of each such Class evidencing an additional amount equal to
the remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issued in fully registered, certificated form, in
Denominations representing Percentage Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) thereof. 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 in Section 5.02(b) of the Pooling and Servicing Agreement) incurred
by the Certificate Registrar in connection with such transfer. With respect to
any transfer or exchange of any Certificate, the Certificate Registrar may
require payment by each Transferor of a sum sufficient to cover any tax, expense
or other governmental charge payable in connection with any such transfer or
exchange.
The Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar and any of their agents may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
The Depositor, the Servicers, the Special Servicer, the Trustee, the Certificate
Registrar or any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time by the
Depositor, the Servicers, the Special Servicer and the Trustee, without the
consent of any of the Certificateholders or the holder of any Serviced Pari
Passu Loan or Serviced B Note: to cure any ambiguity; to cause the provisions
therein to conform or be consistent with or in furtherance of the statements
made with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement in the Private Placement Memorandum or the Prospectus or to correct or
supplement any provisions therein or in the Pooling and Servicing Agreement,
that may be inconsistent with any other provision therein or in the Pooling and
Servicing Agreement, or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of (i) the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC (ii) each Grantor Trust as a grantor trust (at all
times that any Certificate is outstanding) or (iii) any trust fund in which a
Serviced Pari Passu Loan or Serviced B Note is included as a REMIC (at all times
that any related securities are outstanding) or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC pursuant to the Code that would be a claim against the Trust
Fund, the Lower-Tier REMIC or the Upper-Tier REMIC; provided that, the Trustee
has received an Opinion of Counsel addressed to the parties to the Pooling and
Servicing Agreement (at the expense of the party requesting the amendment) to
the effect that (a) such action is necessary or desirable to maintain such
qualification or to avoid or minimize the risk of the imposition of any such tax
and (b) such action will not adversely affect in any material respect the
interests of any Certificateholder or any holder of a related Serviced Pari
Passu Loan or Serviced B Note; to change the timing and/or nature of deposits
into the Certificate Account, any Serviced Whole Loan Custodial Account, the
Distribution Account or REO Account or to change the name in which the
Certificate Account or the Serviced Whole Loan Custodial Account is maintained,
provided that (a) the P&I Advance Date shall in no event be later than the
related Distribution Date, (b) such change shall not, as evidenced by an Opinion
of Counsel addressed to the parties to the Pooling and Servicing Agreement (at
the expense of the party requesting the amendment), adversely affect in any
material respect the interests of any Certificateholder or any holder of a
related Serviced Pari Passu Loan or Serviced B Note and (c) such change shall
not result in the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates or any Class of Serviced Pari Passu
Loan Securities, as evidenced by a letter from each Rating Agency to such
effect; to modify, eliminate or add to the provisions of Section 5.02(d) of the
Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," provided that, such change shall not, as evidenced by an
Opinion of Counsel addressed to the parties to the Pooling and Servicing
Agreement, cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or
any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement or any other change, provided that, such action shall not adversely
affect in any material respect the interests of any Certificateholder or any
holder of a related Serviced Pari Passu Loan or Serviced B Note not consenting
thereto as evidenced by an Opinion of Counsel or by written confirmation from
the Rating Agencies to the effect that the change would not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or any Class of Serviced Pari Passu Loan Securities;
and to amend or supplement any provision in the Pooling and Servicing Agreement
to the extent necessary to maintain the rating or ratings assigned to each Class
of Certificates by each applicable Rating Agency and any other applicable rating
agency; provided that, such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or any Class of Serviced Pari Passu Loan Securities, as evidenced
by a letter from each applicable Rating Agency and any other applicable rating
agency to such effect.
The Pooling and Servicing Agreement may also be amended from time to time by
the Depositor, the Servicers, the Special Servicer and the Trustee with the
consent of the Holders of Certificates evidencing in the aggregate not less than
66 2/3% of the Percentage Interests of each Class of Certificates affected
thereby for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Pooling and Servicing Agreement or of
modifying in any manner the rights of the Holders of Certificates of such Class;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate, or which are required to be
distributed to the holder of any Serviced Pari Passu Loan or Serviced B
Note without the consent of such holder of any Serviced Pari Passu Loan or
Serviced B Note; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding or the voting rights of the holder of any
Serviced Pari Passu Loan or Serviced B Note without the consent of such
holder of any Serviced Pari Passu Loan or Serviced B Note; or
(iv) modify the definition of Servicing Standard without the consent
of the Holders of all Certificates then outstanding and the consent of the
holder of any related Serviced Pari Passu Loan or Serviced B Note; or
(v) amend Section 11.01 of the Pooling and Servicing Agreement.
No amendment shall be made to the Pooling and Servicing Agreement unless the
Trustee shall have received an Opinion of Counsel that such amendment is
permitted under the Pooling and Servicing Agreement and will not cause the
Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, each
Grantor Trust to fail to qualify as a grantor trust, cause any trust fund in
which a Serviced Pari Passu Loan or Serviced B Note is included as a REMIC or
result in the imposition of a tax on the Trust Fund, the Upper-Tier REMIC or the
Lower-Tier REMIC.
The Sole Certificateholder will have the option, upon 60 days' prior notice
given to each of the parties to the Pooling and Servicing Agreement, which
notice the Trustee is required to promptly forward to Certificateholders and
Rating Agencies in the manner set forth in the Pooling and Servicing Agreement,
to exchange all of its Certificates (other than the Residual Certificates) for
all of the Mortgage Loans and each REO Property (or beneficial interest in the
Mortgaged Property under a Non-Serviced Mortgage Loan) remaining in the Trust
Fund, and thereby effect termination of the Trust Fund and early retirement of
the then outstanding Certificates, on any Distribution Date on which the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates is reduced
to zero.
If the Sole Certificateholder chooses not to exercise such right, or if the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates has not been
reduced to zero, the Servicers or the Special Servicer (in that order) will have
the option, upon 60 days' prior notice given to the Trustee and each of the
other parties to the Pooling and Servicing Agreement, which notice the Trustee
is required to promptly forward to Certificateholders and Rating Agencies in the
manner set forth in the Pooling and Servicing Agreement, to purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is less than 1% of
the aggregate Cut-off Date Principal Balance of all the Mortgage Loans.
Subject to Section 9.02 of the Pooling and Servicing Agreement, the
obligations created by the Pooling and Servicing Agreement and the Trust Fund
created thereby (other than the obligation of the Trustee to provide for and
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the United States to
the Court of St. ▇▇▇▇▇, living on the date hereof.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to
be duly executed under this official seal.
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar under
the Pooling and Servicing Agreement.
By:
------------------------------------
AUTHORIZED REPRESENTATIVE
Dated: May 8, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS N CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
-----------------------------------
AUTHORIZED REPRESENTATIVE
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or
upon transfer of, an interest in this Remaining Principal Amount of Notation
Date Book-Entry Certificate Book-Entry Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _______________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
__________________________________ account number _______________ or, if mailed
by check, to _______________________________________. Statements should be
mailed to _______________________________________________________________. This
information is provided by assignee named above, or ___________________________,
as its agent.
EXHIBIT A-24
GE COMMERCIAL MORTGAGE CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-C1, CLASS O
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
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 WHOM THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) (OTHER THAN WITH RESPECT TO A
RESIDUAL CERTIFICATE) 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, (D) (OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE OR AN
ERISA RESTRICTED CERTIFICATE (WITHOUT GIVING EFFECT TO CLAUSE (b)(ii) OF SUCH
DEFINITION)) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR
RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR (E) (OTHER THAN WITH
RESPECT TO A RESIDUAL CERTIFICATE) 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 REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
LAST TWO PAGES OF THIS CERTIFICATE.
THIS CLASS O CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
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.
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 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 A PLAN OR PLANS 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 THIS
CERTIFICATE BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER SECTIONS I AND III OF
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS
PRESENTED FOR REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSE (i) OR
CLAUSE (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 SERVICERS, THE
SPECIAL SERVICER, THE INITIAL PURCHASERS, THE PLACEMENT AGENTS 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. 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 CLAUSE (i) OR CLAUSE (ii) ABOVE.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL
BUYER OR (OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE) AN INSTITUTIONAL
ACCREDITED INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL
IF SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A.
THE PASS-THROUGH RATE ON THE CLASS O CERTIFICATES APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF
WILL BE THE LESSER OF (i) 5.1800% AND (ii) THE THE MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND
WEIGHTED AVERAGE NET MORTGAGE RATE FOR ANY PREPAYMENTS RECEIVED ON OR BEFORE CUT-OFF DATE:
DISTRIBUTION DATE $3,953,465,462
DENOMINATION: $9,884,000 MASTER SERVICERS: KEYCORP REAL ESTATE CAPITAL MARKETS,
INC. AND BANK OF AMERICA, NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF
MAY 1, 2007 SPECIAL SERVICER: LNR PARTNERS, INC.
CUT-OFF DATE: WITH RESPECT TO EACH MORTGAGE LOAN, TRUSTEE: ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
THE LATER OF MAY 1, 2007 OR THE DATE OF ORIGINATION
OF SUCH MORTGAGE LOAN (OR, WITH RESPECT TO LOAN NOS.
1 AND 16, MAY 5, 2007)
CUSIP NO.: [____]
CLOSING DATE: MAY 1, 2007
ISIN NO.: [____]
FIRST DISTRIBUTION DATE:
JUNE 11, 2007 CERTIFICATE NO.: O-1
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS O CERTIFICATES
AS OF THE CLOSING DATE: $9,884,000
CLASS O CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing fixed rate balloon
and fully amortizing mortgage loans (the "Mortgage Loans"), all payments on or
collections in respect of the Mortgage Loans due after the Cut-off Date, all REO
Properties and revenues received in respect thereof, the mortgagee's rights
under the Insurance Policies, any Assignment of Leases, and any guaranties,
escrow accounts or other collateral as security for the Mortgage Loans and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Account, the Interest Reserve Account, the Excess Interest
Distribution Account and the REO Accounts, formed and sold by
GE COMMERCIAL MORTGAGE CORPORATION
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GE
COMMERCIAL MORTGAGE CORPORATION, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class O Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of May 1, 2007 (the "Pooling and Servicing
Agreement"), among GE Commercial Mortgage Corporation (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Servicers and the Special Servicer. A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated
as Certificates of the series specified on the face hereof (herein called the
"Certificates") and representing an interest in the Class of Certificates
specified on the face hereof equal to the quotient expressed as a percentage
obtained by dividing the Denomination of this Certificate specified on the face
hereof, by the aggregate initial Certificate Balance of the Class O
Certificates. The Certificates are designated as the GE Commercial Mortgage
Corporation, Commercial Mortgage Pass-Through Certificates, Series 2007-C1 and
are issued in thirty classes as specifically set forth in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee
shall distribute to the Person in whose name this Certificate is registered as
of the related Record Date, an amount equal to such Person's pro rata share
(based on the Percentage Interest represented by this Certificate) of that
portion of the aggregate amount of principal and interest then distributable, if
any, allocable to the Class of Certificates of the same Class as this
Certificate for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted
of 360 days and each month consisted of 30 days) during the Interest Accrual
Period relating to such Distribution Date at the Class O Pass-Through Rate
specified above on the Certificate Balance of this Certificate immediately prior
to each Distribution Date. Principal and interest allocated to this Certificate
on any Distribution Date will be in an amount due to this Certificate's pro rata
share of the Available Distribution Amount to be distributed on the Certificates
of this Class as of such Distribution Date, with a final distribution to be made
upon retirement of this Certificate as set forth in the Pooling and Servicing
Agreement.
Any Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. Any Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other things,
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Account will be held in the name of the Trustee, on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicers (with respect to the Certificate Account) or the Trustee (with respect
to the Distribution Account) will be authorized to make withdrawals therefrom.
Amounts on deposit in such accounts may be invested in Permitted Investments.
Interest or other income earned on funds (i) in the Certificate Account will be
paid to the Servicers and (ii) in the Distribution Account will be paid to the
Trustee as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account and
the Distribution Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class of
Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder has provided the Trustee with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity having appropriate facilities
therefor. The final distribution on this Certificate shall be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
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 Section 4.01(g) of the Pooling and Servicing Agreement shall
not have been surrendered for cancellation within six months after the time
specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders to surrender their Certificates for
cancellation in order to receive the final distribution with respect thereto. If
within one year after the second notice all such Certificates shall not have
been surrendered for cancellation, the Trustee, directly or through an agent,
shall take such steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it deems 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 under the Pooling and Servicing Agreement by the Trustee as
a result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with Section 4.01(g) of the Pooling and
Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register only upon surrender of this Certificate for
registration of transfer at the office of the Certificate Registrar, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney-in-fact duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized Denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class X-P
and Class X-C Certificates will be issued in book-entry form through the
facilities of DTC in Denominations of not less than $1,000,000 initial Notional
Amount and in integral multiples of $1 in excess thereof, with one Certificate
of such Class evidencing an additional amount equal to the remainder of the
initial Notional Amount of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Offered Certificates will be issued in book-entry form
through the facilities of DTC in Denominations of not less than $10,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. Subject to the terms
of the Pooling and Servicing Agreement, the Non-Registered Certificates (other
than the Class X Certificates and the Residual Certificates) will be issued in
book-entry form through the facilities of DTC in Denominations of $250,000
initial Certificate Balance, and in integral multiples of $1 in excess thereof,
with one Certificate of each such Class evidencing an additional amount equal to
the remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issued in fully registered, certificated form, in
Denominations representing Percentage Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) thereof. 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 in Section 5.02(b) of the Pooling and Servicing Agreement) incurred
by the Certificate Registrar in connection with such transfer. With respect to
any transfer or exchange of any Certificate, the Certificate Registrar may
require payment by each Transferor of a sum sufficient to cover any tax, expense
or other governmental charge payable in connection with any such transfer or
exchange.
The Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar and any of their agents may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
The Depositor, the Servicers, the Special Servicer, the Trustee, the Certificate
Registrar or any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time by the
Depositor, the Servicers, the Special Servicer and the Trustee, without the
consent of any of the Certificateholders or the holder of any Serviced Pari
Passu Loan or Serviced B Note: to cure any ambiguity; to cause the provisions
therein to conform or be consistent with or in furtherance of the statements
made with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement in the Private Placement Memorandum or the Prospectus or to correct or
supplement any provisions therein or in the Pooling and Servicing Agreement,
that may be inconsistent with any other provision therein or in the Pooling and
Servicing Agreement, or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of (i) the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC (ii) each Grantor Trust as a grantor trust (at all
times that any Certificate is outstanding) or (iii) any trust fund in which a
Serviced Pari Passu Loan or Serviced B Note is included as a REMIC (at all times
that any related securities are outstanding) or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC pursuant to the Code that would be a claim against the Trust
Fund, the Lower-Tier REMIC or the Upper-Tier REMIC; provided that, the Trustee
has received an Opinion of Counsel addressed to the parties to the Pooling and
Servicing Agreement (at the expense of the party requesting the amendment) to
the effect that (a) such action is necessary or desirable to maintain such
qualification or to avoid or minimize the risk of the imposition of any such tax
and (b) such action will not adversely affect in any material respect the
interests of any Certificateholder or any holder of a related Serviced Pari
Passu Loan or Serviced B Note; to change the timing and/or nature of deposits
into the Certificate Account, any Serviced Whole Loan Custodial Account, the
Distribution Account or REO Account or to change the name in which the
Certificate Account or the Serviced Whole Loan Custodial Account is maintained,
provided that (a) the P&I Advance Date shall in no event be later than the
related Distribution Date, (b) such change shall not, as evidenced by an Opinion
of Counsel addressed to the parties to the Pooling and Servicing Agreement (at
the expense of the party requesting the amendment), adversely affect in any
material respect the interests of any Certificateholder or any holder of a
related Serviced Pari Passu Loan or Serviced B Note and (c) such change shall
not result in the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates or any Class of Serviced Pari Passu
Loan Securities, as evidenced by a letter from each Rating Agency to such
effect; to modify, eliminate or add to the provisions of Section 5.02(d) of the
Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," provided that, such change shall not, as evidenced by an
Opinion of Counsel addressed to the parties to the Pooling and Servicing
Agreement, cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or
any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement or any other change, provided that, such action shall not adversely
affect in any material respect the interests of any Certificateholder or any
holder of a related Serviced Pari Passu Loan or Serviced B Note not consenting
thereto as evidenced by an Opinion of Counsel or by written confirmation from
the Rating Agencies to the effect that the change would not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or any Class of Serviced Pari Passu Loan Securities;
and to amend or supplement any provision in the Pooling and Servicing Agreement
to the extent necessary to maintain the rating or ratings assigned to each Class
of Certificates by each applicable Rating Agency and any other applicable rating
agency; provided that, such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or any Class of Serviced Pari Passu Loan Securities, as evidenced
by a letter from each applicable Rating Agency and any other applicable rating
agency to such effect.
The Pooling and Servicing Agreement may also be amended from time to time by
the Depositor, the Servicers, the Special Servicer and the Trustee with the
consent of the Holders of Certificates evidencing in the aggregate not less than
66 2/3% of the Percentage Interests of each Class of Certificates affected
thereby for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Pooling and Servicing Agreement or of
modifying in any manner the rights of the Holders of Certificates of such Class;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate, or which are required to be
distributed to the holder of any Serviced Pari Passu Loan or Serviced B
Note without the consent of such holder of any Serviced Pari Passu Loan or
Serviced B Note; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding or the voting rights of the holder of any
Serviced Pari Passu Loan or Serviced B Note without the consent of such
holder of any Serviced Pari Passu Loan or Serviced B Note; or
(iv) modify the definition of Servicing Standard without the consent
of the Holders of all Certificates then outstanding and the consent of the
holder of any related Serviced Pari Passu Loan or Serviced B Note; or
(v) amend Section 11.01 of the Pooling and Servicing Agreement.
No amendment shall be made to the Pooling and Servicing Agreement unless the
Trustee shall have received an Opinion of Counsel that such amendment is
permitted under the Pooling and Servicing Agreement and will not cause the
Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, each
Grantor Trust to fail to qualify as a grantor trust, cause any trust fund in
which a Serviced Pari Passu Loan or Serviced B Note is included as a REMIC or
result in the imposition of a tax on the Trust Fund, the Upper-Tier REMIC or the
Lower-Tier REMIC.
The Sole Certificateholder will have the option, upon 60 days' prior notice
given to each of the parties to the Pooling and Servicing Agreement, which
notice the Trustee is required to promptly forward to Certificateholders and
Rating Agencies in the manner set forth in the Pooling and Servicing Agreement,
to exchange all of its Certificates (other than the Residual Certificates) for
all of the Mortgage Loans and each REO Property (or beneficial interest in the
Mortgaged Property under a Non-Serviced Mortgage Loan) remaining in the Trust
Fund, and thereby effect termination of the Trust Fund and early retirement of
the then outstanding Certificates, on any Distribution Date on which the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates is reduced
to zero.
If the Sole Certificateholder chooses not to exercise such right, or if the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates has not been
reduced to zero, the Servicers or the Special Servicer (in that order) will have
the option, upon 60 days' prior notice given to the Trustee and each of the
other parties to the Pooling and Servicing Agreement, which notice the Trustee
is required to promptly forward to Certificateholders and Rating Agencies in the
manner set forth in the Pooling and Servicing Agreement, to purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is less than 1% of
the aggregate Cut-off Date Principal Balance of all the Mortgage Loans.
Subject to Section 9.02 of the Pooling and Servicing Agreement, the
obligations created by the Pooling and Servicing Agreement and the Trust Fund
created thereby (other than the obligation of the Trustee to provide for and
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the United States to
the Court of St. ▇▇▇▇▇, living on the date hereof.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to
be duly executed under this official seal.
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar under
the Pooling and Servicing Agreement.
By:
------------------------------------
AUTHORIZED REPRESENTATIVE
Dated: May 8, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS O CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
-----------------------------------
AUTHORIZED REPRESENTATIVE
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or
upon transfer of, an interest in this Remaining Principal Amount of Notation
Date Book-Entry Certificate Book-Entry Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _______________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
__________________________________ account number _______________ or, if mailed
by check, to _______________________________________. Statements should be
mailed to _______________________________________________________________. This
information is provided by assignee named above, or ___________________________,
as its agent.
EXHIBIT A-25
GE COMMERCIAL MORTGAGE CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-C1, CLASS P
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
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 WHOM THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) (OTHER THAN WITH RESPECT TO A
RESIDUAL CERTIFICATE) 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, (D) (OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE OR AN
ERISA RESTRICTED CERTIFICATE (WITHOUT GIVING EFFECT TO CLAUSE (b)(ii) OF SUCH
DEFINITION)) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR
RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR (E) (OTHER THAN WITH
RESPECT TO A RESIDUAL CERTIFICATE) 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 REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
LAST TWO PAGES OF THIS CERTIFICATE.
THIS CLASS P CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
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.
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 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 A PLAN OR PLANS 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 THIS
CERTIFICATE BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER SECTIONS I AND III OF
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS
PRESENTED FOR REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSE (i) OR
CLAUSE (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 SERVICERS, THE
SPECIAL SERVICER, THE INITIAL PURCHASERS, THE PLACEMENT AGENTS 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. 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 CLAUSE (i) OR CLAUSE (ii) ABOVE.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL
BUYER OR (OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE) AN INSTITUTIONAL
ACCREDITED INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL
IF SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A.
THE PASS-THROUGH RATE ON THE CLASS P CERTIFICATES APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF
WILL BE THE LESSER OF (i) 5.1800% AND (ii) THE THE MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND
WEIGHTED AVERAGE NET MORTGAGE RATE FOR ANY PREPAYMENTS RECEIVED ON OR BEFORE CUT-OFF DATE:
DISTRIBUTION DATE $3,953,465,462
DENOMINATION: $9,883,000 MASTER SERVICERS: KEYCORP REAL ESTATE CAPITAL MARKETS,
INC. AND BANK OF AMERICA, NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF
MAY 1, 2007 SPECIAL SERVICER: LNR PARTNERS, INC.
CUT-OFF DATE: WITH RESPECT TO EACH MORTGAGE LOAN, TRUSTEE: ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
THE LATER OF MAY 1, 2007 OR THE DATE OF ORIGINATION
OF SUCH MORTGAGE LOAN (OR, WITH RESPECT TO LOAN NOS.
1 AND 16, MAY 5, 2007)
CUSIP NO.: [______]
CLOSING DATE: MAY 1, 2007
ISIN NO.: [______]
FIRST DISTRIBUTION DATE:
JUNE 11, 2007 CERTIFICATE NO.: P-1
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS P CERTIFICATES
AS OF THE CLOSING DATE: $9,883,000
CLASS P CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing fixed rate balloon
and fully amortizing mortgage loans (the "Mortgage Loans"), all payments on or
collections in respect of the Mortgage Loans due after the Cut-off Date, all REO
Properties and revenues received in respect thereof, the mortgagee's rights
under the Insurance Policies, any Assignment of Leases, and any guaranties,
escrow accounts or other collateral as security for the Mortgage Loans and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Account, the Interest Reserve Account, the Excess Interest
Distribution Account and the REO Accounts, formed and sold by
GE COMMERCIAL MORTGAGE CORPORATION
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GE
COMMERCIAL MORTGAGE CORPORATION, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class P Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of May 1, 2007 (the "Pooling and Servicing
Agreement"), among GE Commercial Mortgage Corporation (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Servicers and the Special Servicer. A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated
as Certificates of the series specified on the face hereof (herein called the
"Certificates") and representing an interest in the Class of Certificates
specified on the face hereof equal to the quotient expressed as a percentage
obtained by dividing the Denomination of this Certificate specified on the face
hereof, by the aggregate initial Certificate Balance of the Class P
Certificates. The Certificates are designated as the GE Commercial Mortgage
Corporation, Commercial Mortgage Pass-Through Certificates, Series 2007-C1 and
are issued in thirty classes as specifically set forth in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee
shall distribute to the Person in whose name this Certificate is registered as
of the related Record Date, an amount equal to such Person's pro rata share
(based on the Percentage Interest represented by this Certificate) of that
portion of the aggregate amount of principal and interest then distributable, if
any, allocable to the Class of Certificates of the same Class as this
Certificate for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted
of 360 days and each month consisted of 30 days) during the Interest Accrual
Period relating to such Distribution Date at the Class P Pass-Through Rate
specified above on the Certificate Balance of this Certificate immediately prior
to each Distribution Date. Principal and interest allocated to this Certificate
on any Distribution Date will be in an amount due to this Certificate's pro rata
share of the Available Distribution Amount to be distributed on the Certificates
of this Class as of such Distribution Date, with a final distribution to be made
upon retirement of this Certificate as set forth in the Pooling and Servicing
Agreement.
Any Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. Any Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other things,
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Account will be held in the name of the Trustee, on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicers (with respect to the Certificate Account) or the Trustee (with respect
to the Distribution Account) will be authorized to make withdrawals therefrom.
Amounts on deposit in such accounts may be invested in Permitted Investments.
Interest or other income earned on funds (i) in the Certificate Account will be
paid to the Servicers and (ii) in the Distribution Account will be paid to the
Trustee as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account and
the Distribution Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class of
Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder has provided the Trustee with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity having appropriate facilities
therefor. The final distribution on this Certificate shall be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
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 Section 4.01(g) of the Pooling and Servicing Agreement shall
not have been surrendered for cancellation within six months after the time
specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders to surrender their Certificates for
cancellation in order to receive the final distribution with respect thereto. If
within one year after the second notice all such Certificates shall not have
been surrendered for cancellation, the Trustee, directly or through an agent,
shall take such steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it deems 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 under the Pooling and Servicing Agreement by the Trustee as
a result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with Section 4.01(g) of the Pooling and
Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register only upon surrender of this Certificate for
registration of transfer at the office of the Certificate Registrar, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney-in-fact duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized Denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class X-P
and Class X-C Certificates will be issued in book-entry form through the
facilities of DTC in Denominations of not less than $1,000,000 initial Notional
Amount and in integral multiples of $1 in excess thereof, with one Certificate
of such Class evidencing an additional amount equal to the remainder of the
initial Notional Amount of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Offered Certificates will be issued in book-entry form
through the facilities of DTC in Denominations of not less than $10,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. Subject to the terms
of the Pooling and Servicing Agreement, the Non-Registered Certificates (other
than the Class X Certificates and the Residual Certificates) will be issued in
book-entry form through the facilities of DTC in Denominations of $250,000
initial Certificate Balance, and in integral multiples of $1 in excess thereof,
with one Certificate of each such Class evidencing an additional amount equal to
the remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issued in fully registered, certificated form, in
Denominations representing Percentage Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) thereof. 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 in Section 5.02(b) of the Pooling and Servicing Agreement) incurred
by the Certificate Registrar in connection with such transfer. With respect to
any transfer or exchange of any Certificate, the Certificate Registrar may
require payment by each Transferor of a sum sufficient to cover any tax, expense
or other governmental charge payable in connection with any such transfer or
exchange.
The Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar and any of their agents may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
The Depositor, the Servicers, the Special Servicer, the Trustee, the Certificate
Registrar or any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time by the
Depositor, the Servicers, the Special Servicer and the Trustee, without the
consent of any of the Certificateholders or the holder of any Serviced Pari
Passu Loan or Serviced B Note: to cure any ambiguity; to cause the provisions
therein to conform or be consistent with or in furtherance of the statements
made with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement in the Private Placement Memorandum or the Prospectus or to correct or
supplement any provisions therein or in the Pooling and Servicing Agreement,
that may be inconsistent with any other provision therein or in the Pooling and
Servicing Agreement, or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of (i) the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC (ii) each Grantor Trust as a grantor trust (at all
times that any Certificate is outstanding) or (iii) any trust fund in which a
Serviced Pari Passu Loan or Serviced B Note is included as a REMIC (at all times
that any related securities are outstanding) or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC pursuant to the Code that would be a claim against the Trust
Fund, the Lower-Tier REMIC or the Upper-Tier REMIC; provided that, the Trustee
has received an Opinion of Counsel addressed to the parties to the Pooling and
Servicing Agreement (at the expense of the party requesting the amendment) to
the effect that (a) such action is necessary or desirable to maintain such
qualification or to avoid or minimize the risk of the imposition of any such tax
and (b) such action will not adversely affect in any material respect the
interests of any Certificateholder or any holder of a related Serviced Pari
Passu Loan or Serviced B Note; to change the timing and/or nature of deposits
into the Certificate Account, any Serviced Whole Loan Custodial Account, the
Distribution Account or REO Account or to change the name in which the
Certificate Account or the Serviced Whole Loan Custodial Account is maintained,
provided that (a) the P&I Advance Date shall in no event be later than the
related Distribution Date, (b) such change shall not, as evidenced by an Opinion
of Counsel addressed to the parties to the Pooling and Servicing Agreement (at
the expense of the party requesting the amendment), adversely affect in any
material respect the interests of any Certificateholder or any holder of a
related Serviced Pari Passu Loan or Serviced B Note and (c) such change shall
not result in the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates or any Class of Serviced Pari Passu
Loan Securities, as evidenced by a letter from each Rating Agency to such
effect; to modify, eliminate or add to the provisions of Section 5.02(d) of the
Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," provided that, such change shall not, as evidenced by an
Opinion of Counsel addressed to the parties to the Pooling and Servicing
Agreement, cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or
any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement or any other change, provided that, such action shall not adversely
affect in any material respect the interests of any Certificateholder or any
holder of a related Serviced Pari Passu Loan or Serviced B Note not consenting
thereto as evidenced by an Opinion of Counsel or by written confirmation from
the Rating Agencies to the effect that the change would not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or any Class of Serviced Pari Passu Loan Securities;
and to amend or supplement any provision in the Pooling and Servicing Agreement
to the extent necessary to maintain the rating or ratings assigned to each Class
of Certificates by each applicable Rating Agency and any other applicable rating
agency; provided that, such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or any Class of Serviced Pari Passu Loan Securities, as evidenced
by a letter from each applicable Rating Agency and any other applicable rating
agency to such effect.
The Pooling and Servicing Agreement may also be amended from time to time by
the Depositor, the Servicers, the Special Servicer and the Trustee with the
consent of the Holders of Certificates evidencing in the aggregate not less than
66 2/3% of the Percentage Interests of each Class of Certificates affected
thereby for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Pooling and Servicing Agreement or of
modifying in any manner the rights of the Holders of Certificates of such Class;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate, or which are required to be
distributed to the holder of any Serviced Pari Passu Loan or Serviced B
Note without the consent of such holder of any Serviced Pari Passu Loan or
Serviced B Note; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding or the voting rights of the holder of any
Serviced Pari Passu Loan or Serviced B Note without the consent of such
holder of any Serviced Pari Passu Loan or Serviced B Note; or
(iv) modify the definition of Servicing Standard without the consent
of the Holders of all Certificates then outstanding and the consent of the
holder of any related Serviced Pari Passu Loan or Serviced B Note; or
(v) amend Section 11.01 of the Pooling and Servicing Agreement.
No amendment shall be made to the Pooling and Servicing Agreement unless the
Trustee shall have received an Opinion of Counsel that such amendment is
permitted under the Pooling and Servicing Agreement and will not cause the
Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, each
Grantor Trust to fail to qualify as a grantor trust, cause any trust fund in
which a Serviced Pari Passu Loan or Serviced B Note is included as a REMIC or
result in the imposition of a tax on the Trust Fund, the Upper-Tier REMIC or the
Lower-Tier REMIC.
The Sole Certificateholder will have the option, upon 60 days' prior notice
given to each of the parties to the Pooling and Servicing Agreement, which
notice the Trustee is required to promptly forward to Certificateholders and
Rating Agencies in the manner set forth in the Pooling and Servicing Agreement,
to exchange all of its Certificates (other than the Residual Certificates) for
all of the Mortgage Loans and each REO Property (or beneficial interest in the
Mortgaged Property under a Non-Serviced Mortgage Loan) remaining in the Trust
Fund, and thereby effect termination of the Trust Fund and early retirement of
the then outstanding Certificates, on any Distribution Date on which the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates is reduced
to zero.
If the Sole Certificateholder chooses not to exercise such right, or if the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates has not been
reduced to zero, the Servicers or the Special Servicer (in that order) will have
the option, upon 60 days' prior notice given to the Trustee and each of the
other parties to the Pooling and Servicing Agreement, which notice the Trustee
is required to promptly forward to Certificateholders and Rating Agencies in the
manner set forth in the Pooling and Servicing Agreement, to purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is less than 1% of
the aggregate Cut-off Date Principal Balance of all the Mortgage Loans.
Subject to Section 9.02 of the Pooling and Servicing Agreement, the
obligations created by the Pooling and Servicing Agreement and the Trust Fund
created thereby (other than the obligation of the Trustee to provide for and
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the United States to
the Court of St. ▇▇▇▇▇, living on the date hereof.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to
be duly executed under this official seal.
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar under
the Pooling and Servicing Agreement.
By:
------------------------------------
AUTHORIZED REPRESENTATIVE
Dated: May 8, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS P CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
-----------------------------------
AUTHORIZED REPRESENTATIVE
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or
upon transfer of, an interest in this Remaining Principal Amount of Notation
Date Book-Entry Certificate Book-Entry Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _______________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
__________________________________ account number _______________ or, if mailed
by check, to _______________________________________. Statements should be
mailed to _______________________________________________________________. This
information is provided by assignee named above, or ___________________________,
as its agent.
EXHIBIT A-26
GE COMMERCIAL MORTGAGE CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-C1, CLASS Q
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
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 WHOM THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) (OTHER THAN WITH RESPECT TO A
RESIDUAL CERTIFICATE) 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, (D) (OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE OR AN
ERISA RESTRICTED CERTIFICATE (WITHOUT GIVING EFFECT TO CLAUSE (b)(ii) OF SUCH
DEFINITION)) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR
RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR (E) (OTHER THAN WITH
RESPECT TO A RESIDUAL CERTIFICATE) 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 REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
LAST TWO PAGES OF THIS CERTIFICATE.
THIS CLASS Q CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
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.
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 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 A PLAN OR PLANS 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 THIS
CERTIFICATE BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER SECTIONS I AND III OF
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS
PRESENTED FOR REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSE (i) OR
CLAUSE (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 SERVICERS, THE
SPECIAL SERVICER, THE INITIAL PURCHASERS, THE PLACEMENT AGENTS 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. 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 CLAUSE (i) OR CLAUSE (ii) ABOVE.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL
BUYER OR (OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE) AN INSTITUTIONAL
ACCREDITED INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL
IF SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A.
THE PASS-THROUGH RATE ON THE CLASS Q CERTIFICATES APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF
WILL BE THE LESSER OF (i) 5.1800% AND (ii) THE THE MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND
WEIGHTED AVERAGE NET MORTGAGE RATE FOR ANY PREPAYMENTS RECEIVED ON OR BEFORE CUT-OFF DATE:
DISTRIBUTION DATE $3,953,465,462
DENOMINATION: $14,826,000 MASTER SERVICERS: KEYCORP REAL ESTATE CAPITAL MARKETS,
INC. AND BANK OF AMERICA, NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF
MAY 1, 2007 SPECIAL SERVICER: LNR PARTNERS, INC.
CUT-OFF DATE: WITH RESPECT TO EACH MORTGAGE LOAN, TRUSTEE: ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
THE LATER OF MAY 1, 2007 OR THE DATE OF ORIGINATION
OF SUCH MORTGAGE LOAN (OR, WITH RESPECT TO LOAN NOS.
1 AND 16, MAY 5, 2007)
CUSIP NO.: [______]
CLOSING DATE: MAY 1, 2007
ISIN NO.: [______]
FIRST DISTRIBUTION DATE:
JUNE 11, 2007 CERTIFICATE NO.: Q-1
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS Q CERTIFICATES
AS OF THE CLOSING DATE: $14,826,000
CLASS Q CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing fixed rate balloon
and fully amortizing mortgage loans (the "Mortgage Loans"), all payments on or
collections in respect of the Mortgage Loans due after the Cut-off Date, all REO
Properties and revenues received in respect thereof, the mortgagee's rights
under the Insurance Policies, any Assignment of Leases, and any guaranties,
escrow accounts or other collateral as security for the Mortgage Loans and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Account, the Interest Reserve Account, the Excess Interest
Distribution Account and the REO Accounts, formed and sold by
GE COMMERCIAL MORTGAGE CORPORATION
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GE
COMMERCIAL MORTGAGE CORPORATION, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class Q Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of May 1, 2007 (the "Pooling and Servicing
Agreement"), among GE Commercial Mortgage Corporation (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Servicers and the Special Servicer. A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated
as Certificates of the series specified on the face hereof (herein called the
"Certificates") and representing an interest in the Class of Certificates
specified on the face hereof equal to the quotient expressed as a percentage
obtained by dividing the Denomination of this Certificate specified on the face
hereof, by the aggregate initial Certificate Balance of the Class Q
Certificates. The Certificates are designated as the GE Commercial Mortgage
Corporation, Commercial Mortgage Pass-Through Certificates, Series 2007-C1 and
are issued in thirty classes as specifically set forth in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee
shall distribute to the Person in whose name this Certificate is registered as
of the related Record Date, an amount equal to such Person's pro rata share
(based on the Percentage Interest represented by this Certificate) of that
portion of the aggregate amount of principal and interest then distributable, if
any, allocable to the Class of Certificates of the same Class as this
Certificate for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted
of 360 days and each month consisted of 30 days) during the Interest Accrual
Period relating to such Distribution Date at the Class Q Pass-Through Rate
specified above on the Certificate Balance of this Certificate immediately prior
to each Distribution Date. Principal and interest allocated to this Certificate
on any Distribution Date will be in an amount due to this Certificate's pro rata
share of the Available Distribution Amount to be distributed on the Certificates
of this Class as of such Distribution Date, with a final distribution to be made
upon retirement of this Certificate as set forth in the Pooling and Servicing
Agreement.
Any Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. Any Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other things,
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Account will be held in the name of the Trustee, on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicers (with respect to the Certificate Account) or the Trustee (with respect
to the Distribution Account) will be authorized to make withdrawals therefrom.
Amounts on deposit in such accounts may be invested in Permitted Investments.
Interest or other income earned on funds (i) in the Certificate Account will be
paid to the Servicers and (ii) in the Distribution Account will be paid to the
Trustee as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account and
the Distribution Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class of
Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder has provided the Trustee with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity having appropriate facilities
therefor. The final distribution on this Certificate shall be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
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 Section 4.01(g) of the Pooling and Servicing Agreement shall
not have been surrendered for cancellation within six months after the time
specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders to surrender their Certificates for
cancellation in order to receive the final distribution with respect thereto. If
within one year after the second notice all such Certificates shall not have
been surrendered for cancellation, the Trustee, directly or through an agent,
shall take such steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it deems 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 under the Pooling and Servicing Agreement by the Trustee as
a result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with Section 4.01(g) of the Pooling and
Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register only upon surrender of this Certificate for
registration of transfer at the office of the Certificate Registrar, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney-in-fact duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized Denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class X-P
and Class X-C Certificates will be issued in book-entry form through the
facilities of DTC in Denominations of not less than $1,000,000 initial Notional
Amount and in integral multiples of $1 in excess thereof, with one Certificate
of such Class evidencing an additional amount equal to the remainder of the
initial Notional Amount of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Offered Certificates will be issued in book-entry form
through the facilities of DTC in Denominations of not less than $10,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. Subject to the terms
of the Pooling and Servicing Agreement, the Non-Registered Certificates (other
than the Class X Certificates and the Residual Certificates) will be issued in
book-entry form through the facilities of DTC in Denominations of $250,000
initial Certificate Balance, and in integral multiples of $1 in excess thereof,
with one Certificate of each such Class evidencing an additional amount equal to
the remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issued in fully registered, certificated form, in
Denominations representing Percentage Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) thereof. 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 in Section 5.02(b) of the Pooling and Servicing Agreement) incurred
by the Certificate Registrar in connection with such transfer. With respect to
any transfer or exchange of any Certificate, the Certificate Registrar may
require payment by each Transferor of a sum sufficient to cover any tax, expense
or other governmental charge payable in connection with any such transfer or
exchange.
The Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar and any of their agents may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
The Depositor, the Servicers, the Special Servicer, the Trustee, the Certificate
Registrar or any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time by the
Depositor, the Servicers, the Special Servicer and the Trustee, without the
consent of any of the Certificateholders or the holder of any Serviced Pari
Passu Loan or Serviced B Note: to cure any ambiguity; to cause the provisions
therein to conform or be consistent with or in furtherance of the statements
made with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement in the Private Placement Memorandum or the Prospectus or to correct or
supplement any provisions therein or in the Pooling and Servicing Agreement,
that may be inconsistent with any other provision therein or in the Pooling and
Servicing Agreement, or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of (i) the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC (ii) each Grantor Trust as a grantor trust (at all
times that any Certificate is outstanding) or (iii) any trust fund in which a
Serviced Pari Passu Loan or Serviced B Note is included as a REMIC (at all times
that any related securities are outstanding) or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC pursuant to the Code that would be a claim against the Trust
Fund, the Lower-Tier REMIC or the Upper-Tier REMIC; provided that, the Trustee
has received an Opinion of Counsel addressed to the parties to the Pooling and
Servicing Agreement (at the expense of the party requesting the amendment) to
the effect that (a) such action is necessary or desirable to maintain such
qualification or to avoid or minimize the risk of the imposition of any such tax
and (b) such action will not adversely affect in any material respect the
interests of any Certificateholder or any holder of a related Serviced Pari
Passu Loan or Serviced B Note; to change the timing and/or nature of deposits
into the Certificate Account, any Serviced Whole Loan Custodial Account, the
Distribution Account or REO Account or to change the name in which the
Certificate Account or the Serviced Whole Loan Custodial Account is maintained,
provided that (a) the P&I Advance Date shall in no event be later than the
related Distribution Date, (b) such change shall not, as evidenced by an Opinion
of Counsel addressed to the parties to the Pooling and Servicing Agreement (at
the expense of the party requesting the amendment), adversely affect in any
material respect the interests of any Certificateholder or any holder of a
related Serviced Pari Passu Loan or Serviced B Note and (c) such change shall
not result in the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates or any Class of Serviced Pari Passu
Loan Securities, as evidenced by a letter from each Rating Agency to such
effect; to modify, eliminate or add to the provisions of Section 5.02(d) of the
Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," provided that, such change shall not, as evidenced by an
Opinion of Counsel addressed to the parties to the Pooling and Servicing
Agreement, cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or
any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement or any other change, provided that, such action shall not adversely
affect in any material respect the interests of any Certificateholder or any
holder of a related Serviced Pari Passu Loan or Serviced B Note not consenting
thereto as evidenced by an Opinion of Counsel or by written confirmation from
the Rating Agencies to the effect that the change would not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or any Class of Serviced Pari Passu Loan Securities;
and to amend or supplement any provision in the Pooling and Servicing Agreement
to the extent necessary to maintain the rating or ratings assigned to each Class
of Certificates by each applicable Rating Agency and any other applicable rating
agency; provided that, such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or any Class of Serviced Pari Passu Loan Securities, as evidenced
by a letter from each applicable Rating Agency and any other applicable rating
agency to such effect.
The Pooling and Servicing Agreement may also be amended from time to time by
the Depositor, the Servicers, the Special Servicer and the Trustee with the
consent of the Holders of Certificates evidencing in the aggregate not less than
66 2/3% of the Percentage Interests of each Class of Certificates affected
thereby for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Pooling and Servicing Agreement or of
modifying in any manner the rights of the Holders of Certificates of such Class;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate, or which are required to be
distributed to the holder of any Serviced Pari Passu Loan or Serviced B
Note without the consent of such holder of any Serviced Pari Passu Loan or
Serviced B Note; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding or the voting rights of the holder of any
Serviced Pari Passu Loan or Serviced B Note without the consent of such
holder of any Serviced Pari Passu Loan or Serviced B Note; or
(iv) modify the definition of Servicing Standard without the consent
of the Holders of all Certificates then outstanding and the consent of the
holder of any related Serviced Pari Passu Loan or Serviced B Note; or
(v) amend Section 11.01 of the Pooling and Servicing Agreement.
No amendment shall be made to the Pooling and Servicing Agreement unless the
Trustee shall have received an Opinion of Counsel that such amendment is
permitted under the Pooling and Servicing Agreement and will not cause the
Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, each
Grantor Trust to fail to qualify as a grantor trust, cause any trust fund in
which a Serviced Pari Passu Loan or Serviced B Note is included as a REMIC or
result in the imposition of a tax on the Trust Fund, the Upper-Tier REMIC or the
Lower-Tier REMIC.
The Sole Certificateholder will have the option, upon 60 days' prior notice
given to each of the parties to the Pooling and Servicing Agreement, which
notice the Trustee is required to promptly forward to Certificateholders and
Rating Agencies in the manner set forth in the Pooling and Servicing Agreement,
to exchange all of its Certificates (other than the Residual Certificates) for
all of the Mortgage Loans and each REO Property (or beneficial interest in the
Mortgaged Property under a Non-Serviced Mortgage Loan) remaining in the Trust
Fund, and thereby effect termination of the Trust Fund and early retirement of
the then outstanding Certificates, on any Distribution Date on which the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates is reduced
to zero.
If the Sole Certificateholder chooses not to exercise such right, or if the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates has not been
reduced to zero, the Servicers or the Special Servicer (in that order) will have
the option, upon 60 days' prior notice given to the Trustee and each of the
other parties to the Pooling and Servicing Agreement, which notice the Trustee
is required to promptly forward to Certificateholders and Rating Agencies in the
manner set forth in the Pooling and Servicing Agreement, to purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is less than 1% of
the aggregate Cut-off Date Principal Balance of all the Mortgage Loans.
Subject to Section 9.02 of the Pooling and Servicing Agreement, the
obligations created by the Pooling and Servicing Agreement and the Trust Fund
created thereby (other than the obligation of the Trustee to provide for and
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the United States to
the Court of St. ▇▇▇▇▇, living on the date hereof.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to
be duly executed under this official seal.
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar under
the Pooling and Servicing Agreement.
By:
------------------------------------
AUTHORIZED REPRESENTATIVE
Dated: May 8, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS Q CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
-----------------------------------
AUTHORIZED REPRESENTATIVE
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or
upon transfer of, an interest in this Remaining Principal Amount of Notation
Date Book-Entry Certificate Book-Entry Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _______________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
__________________________________ account number _______________ or, if mailed
by check, to _______________________________________. Statements should be
mailed to _______________________________________________________________. This
information is provided by assignee named above, or ___________________________,
as its agent.
EXHIBIT A-27
GE COMMERCIAL MORTGAGE CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-C1, CLASS T
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
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 WHOM THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) (OTHER THAN WITH RESPECT TO A
RESIDUAL CERTIFICATE) 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, (D) (OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE OR AN
ERISA RESTRICTED CERTIFICATE (WITHOUT GIVING EFFECT TO CLAUSE (b)(ii) OF SUCH
DEFINITION)) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR
RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR (E) (OTHER THAN WITH
RESPECT TO A RESIDUAL CERTIFICATE) 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 REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
LAST TWO PAGES OF THIS CERTIFICATE.
THIS CLASS T CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
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.
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 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 A PLAN OR PLANS 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 THIS
CERTIFICATE BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER SECTIONS I AND III OF
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS
PRESENTED FOR REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSE (i) OR
CLAUSE (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 SERVICERS, THE
SPECIAL SERVICER, THE INITIAL PURCHASERS, THE PLACEMENT AGENTS 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. 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 CLAUSE (i) OR CLAUSE (ii) ABOVE.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL
BUYER OR (OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE) AN INSTITUTIONAL
ACCREDITED INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL
IF SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A.
THE PASS-THROUGH RATE ON THE CLASS T CERTIFICATES APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF
WILL BE THE LESSER OF (i) 5.1800% AND (ii) THE THE MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND
WEIGHTED AVERAGE NET MORTGAGE RATE FOR ANY PREPAYMENTS RECEIVED ON OR BEFORE CUT-OFF DATE:
DISTRIBUTION DATE $3,953,465,462
DENOMINATION: $54,360,462 MASTER SERVICERS: KEYCORP REAL ESTATE CAPITAL MARKETS,
INC. AND BANK OF AMERICA, NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF
MAY 1, 2007 SPECIAL SERVICER: LNR PARTNERS, INC.
CUT-OFF DATE: WITH RESPECT TO EACH MORTGAGE LOAN, TRUSTEE: ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
THE LATER OF MAY 1, 2007 OR THE DATE OF ORIGINATION
OF SUCH MORTGAGE LOAN (OR, WITH RESPECT TO LOAN NOS.
1 AND 16, MAY 5, 2007)
CUSIP NO.: [______]
CLOSING DATE: MAY 1, 2007
ISIN NO.: [______]
FIRST DISTRIBUTION DATE:
JUNE 11, 2007 CERTIFICATE NO.: T-1
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS T CERTIFICATES
AS OF THE CLOSING DATE: $54,360,462
CLASS T CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing fixed rate balloon
and fully amortizing mortgage loans (the "Mortgage Loans"), all payments on or
collections in respect of the Mortgage Loans due after the Cut-off Date, all REO
Properties and revenues received in respect thereof, the mortgagee's rights
under the Insurance Policies, any Assignment of Leases, and any guaranties,
escrow accounts or other collateral as security for the Mortgage Loans and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Account, the Interest Reserve Account, the Excess Interest
Distribution Account and the REO Accounts, formed and sold by
GE COMMERCIAL MORTGAGE CORPORATION
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GE
COMMERCIAL MORTGAGE CORPORATION, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class T Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of May 1, 2007 (the "Pooling and Servicing
Agreement"), among GE Commercial Mortgage Corporation (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Servicers and the Special Servicer. A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated
as Certificates of the series specified on the face hereof (herein called the
"Certificates") and representing an interest in the Class of Certificates
specified on the face hereof equal to the quotient expressed as a percentage
obtained by dividing the Denomination of this Certificate specified on the face
hereof, by the aggregate initial Certificate Balance of the Class T
Certificates. The Certificates are designated as the GE Commercial Mortgage
Corporation, Commercial Mortgage Pass-Through Certificates, Series 2007-C1 and
are issued in thirty classes as specifically set forth in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee
shall distribute to the Person in whose name this Certificate is registered as
of the related Record Date, an amount equal to such Person's pro rata share
(based on the Percentage Interest represented by this Certificate) of that
portion of the aggregate amount of principal and interest then distributable, if
any, allocable to the Class of Certificates of the same Class as this
Certificate for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted
of 360 days and each month consisted of 30 days) during the Interest Accrual
Period relating to such Distribution Date at the Class T Pass-Through Rate
specified above on the Certificate Balance of this Certificate immediately prior
to each Distribution Date. Principal and interest allocated to this Certificate
on any Distribution Date will be in an amount due to this Certificate's pro rata
share of the Available Distribution Amount to be distributed on the Certificates
of this Class as of such Distribution Date, with a final distribution to be made
upon retirement of this Certificate as set forth in the Pooling and Servicing
Agreement.
Any Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. Any Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other things,
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Account will be held in the name of the Trustee, on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicers (with respect to the Certificate Account) or the Trustee (with respect
to the Distribution Account) will be authorized to make withdrawals therefrom.
Amounts on deposit in such accounts may be invested in Permitted Investments.
Interest or other income earned on funds (i) in the Certificate Account will be
paid to the Servicers and (ii) in the Distribution Account will be paid to the
Trustee as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account and
the Distribution Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class of
Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder has provided the Trustee with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity having appropriate facilities
therefor. The final distribution on this Certificate shall be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
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 Section 4.01(g) of the Pooling and Servicing Agreement shall
not have been surrendered for cancellation within six months after the time
specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders to surrender their Certificates for
cancellation in order to receive the final distribution with respect thereto. If
within one year after the second notice all such Certificates shall not have
been surrendered for cancellation, the Trustee, directly or through an agent,
shall take such steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it deems 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 under the Pooling and Servicing Agreement by the Trustee as
a result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with Section 4.01(g) of the Pooling and
Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register only upon surrender of this Certificate for
registration of transfer at the office of the Certificate Registrar, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney-in-fact duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized Denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class X-P
and Class X-C Certificates will be issued in book-entry form through the
facilities of DTC in Denominations of not less than $1,000,000 initial Notional
Amount and in integral multiples of $1 in excess thereof, with one Certificate
of such Class evidencing an additional amount equal to the remainder of the
initial Notional Amount of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Offered Certificates will be issued in book-entry form
through the facilities of DTC in Denominations of not less than $10,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. Subject to the terms
of the Pooling and Servicing Agreement, the Non-Registered Certificates (other
than the Class X Certificates and the Residual Certificates) will be issued in
book-entry form through the facilities of DTC in Denominations of $250,000
initial Certificate Balance, and in integral multiples of $1 in excess thereof,
with one Certificate of each such Class evidencing an additional amount equal to
the remainder of the initial Certificate Balance of such Class. The Class R and
Class LR Certificates will be issued in fully registered, certificated form, in
Denominations representing Percentage Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) thereof. 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 in Section 5.02(b) of the Pooling and Servicing Agreement) incurred
by the Certificate Registrar in connection with such transfer. With respect to
any transfer or exchange of any Certificate, the Certificate Registrar may
require payment by each Transferor of a sum sufficient to cover any tax, expense
or other governmental charge payable in connection with any such transfer or
exchange.
The Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar and any of their agents may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
The Depositor, the Servicers, the Special Servicer, the Trustee, the Certificate
Registrar or any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time by the
Depositor, the Servicers, the Special Servicer and the Trustee, without the
consent of any of the Certificateholders or the holder of any Serviced Pari
Passu Loan or Serviced B Note: to cure any ambiguity; to cause the provisions
therein to conform or be consistent with or in furtherance of the statements
made with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement in the Private Placement Memorandum or the Prospectus or to correct or
supplement any provisions therein or in the Pooling and Servicing Agreement,
that may be inconsistent with any other provision therein or in the Pooling and
Servicing Agreement, or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of (i) the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC (ii) each Grantor Trust as a grantor trust (at all
times that any Certificate is outstanding) or (iii) any trust fund in which a
Serviced Pari Passu Loan or Serviced B Note is included as a REMIC (at all times
that any related securities are outstanding) or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC pursuant to the Code that would be a claim against the Trust
Fund, the Lower-Tier REMIC or the Upper-Tier REMIC; provided that, the Trustee
has received an Opinion of Counsel addressed to the parties to the Pooling and
Servicing Agreement (at the expense of the party requesting the amendment) to
the effect that (a) such action is necessary or desirable to maintain such
qualification or to avoid or minimize the risk of the imposition of any such tax
and (b) such action will not adversely affect in any material respect the
interests of any Certificateholder or any holder of a related Serviced Pari
Passu Loan or Serviced B Note; to change the timing and/or nature of deposits
into the Certificate Account, any Serviced Whole Loan Custodial Account, the
Distribution Account or REO Account or to change the name in which the
Certificate Account or the Serviced Whole Loan Custodial Account is maintained,
provided that (a) the P&I Advance Date shall in no event be later than the
related Distribution Date, (b) such change shall not, as evidenced by an Opinion
of Counsel addressed to the parties to the Pooling and Servicing Agreement (at
the expense of the party requesting the amendment), adversely affect in any
material respect the interests of any Certificateholder or any holder of a
related Serviced Pari Passu Loan or Serviced B Note and (c) such change shall
not result in the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates or any Class of Serviced Pari Passu
Loan Securities, as evidenced by a letter from each Rating Agency to such
effect; to modify, eliminate or add to the provisions of Section 5.02(d) of the
Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," provided that, such change shall not, as evidenced by an
Opinion of Counsel addressed to the parties to the Pooling and Servicing
Agreement, cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or
any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement or any other change, provided that, such action shall not adversely
affect in any material respect the interests of any Certificateholder or any
holder of a related Serviced Pari Passu Loan or Serviced B Note not consenting
thereto as evidenced by an Opinion of Counsel or by written confirmation from
the Rating Agencies to the effect that the change would not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or any Class of Serviced Pari Passu Loan Securities;
and to amend or supplement any provision in the Pooling and Servicing Agreement
to the extent necessary to maintain the rating or ratings assigned to each Class
of Certificates by each applicable Rating Agency and any other applicable rating
agency; provided that, such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or any Class of Serviced Pari Passu Loan Securities, as evidenced
by a letter from each applicable Rating Agency and any other applicable rating
agency to such effect.
The Pooling and Servicing Agreement may also be amended from time to time by
the Depositor, the Servicers, the Special Servicer and the Trustee with the
consent of the Holders of Certificates evidencing in the aggregate not less than
66 2/3% of the Percentage Interests of each Class of Certificates affected
thereby for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Pooling and Servicing Agreement or of
modifying in any manner the rights of the Holders of Certificates of such Class;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate, or which are required to be
distributed to the holder of any Serviced Pari Passu Loan or Serviced B
Note without the consent of such holder of any Serviced Pari Passu Loan or
Serviced B Note; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding or the voting rights of the holder of any
Serviced Pari Passu Loan or Serviced B Note without the consent of such
holder of any Serviced Pari Passu Loan or Serviced B Note; or
(iv) modify the definition of Servicing Standard without the consent
of the Holders of all Certificates then outstanding and the consent of the
holder of any related Serviced Pari Passu Loan or Serviced B Note; or
(v) amend Section 11.01 of the Pooling and Servicing Agreement.
No amendment shall be made to the Pooling and Servicing Agreement unless the
Trustee shall have received an Opinion of Counsel that such amendment is
permitted under the Pooling and Servicing Agreement and will not cause the
Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, each
Grantor Trust to fail to qualify as a grantor trust, cause any trust fund in
which a Serviced Pari Passu Loan or Serviced B Note is included as a REMIC or
result in the imposition of a tax on the Trust Fund, the Upper-Tier REMIC or the
Lower-Tier REMIC.
The Sole Certificateholder will have the option, upon 60 days' prior notice
given to each of the parties to the Pooling and Servicing Agreement, which
notice the Trustee is required to promptly forward to Certificateholders and
Rating Agencies in the manner set forth in the Pooling and Servicing Agreement,
to exchange all of its Certificates (other than the Residual Certificates) for
all of the Mortgage Loans and each REO Property (or beneficial interest in the
Mortgaged Property under a Non-Serviced Mortgage Loan) remaining in the Trust
Fund, and thereby effect termination of the Trust Fund and early retirement of
the then outstanding Certificates, on any Distribution Date on which the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates is reduced
to zero.
If the Sole Certificateholder chooses not to exercise such right, or if the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates has not been
reduced to zero, the Servicers or the Special Servicer (in that order) will have
the option, upon 60 days' prior notice given to the Trustee and each of the
other parties to the Pooling and Servicing Agreement, which notice the Trustee
is required to promptly forward to Certificateholders and Rating Agencies in the
manner set forth in the Pooling and Servicing Agreement, to purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is less than 1% of
the aggregate Cut-off Date Principal Balance of all the Mortgage Loans.
Subject to Section 9.02 of the Pooling and Servicing Agreement, the
obligations created by the Pooling and Servicing Agreement and the Trust Fund
created thereby (other than the obligation of the Trustee to provide for and
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the United States to
the Court of St. ▇▇▇▇▇, living on the date hereof.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to
be duly executed under this official seal.
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar under
the Pooling and Servicing Agreement.
By:
------------------------------------
AUTHORIZED REPRESENTATIVE
Dated: May 8, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS T CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
-----------------------------------
AUTHORIZED REPRESENTATIVE
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or
upon transfer of, an interest in this Remaining Principal Amount of Notation
Date Book-Entry Certificate Book-Entry Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _______________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
__________________________________ account number _______________ or, if mailed
by check, to _______________________________________. Statements should be
mailed to _______________________________________________________________. This
information is provided by assignee named above, or ___________________________,
as its agent.
EXHIBIT A-28
GE COMMERCIAL MORTGAGE CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-C1, CLASS X-C
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
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 WHOM THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) (OTHER THAN WITH RESPECT TO A
RESIDUAL CERTIFICATE) 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, (D) (OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE OR AN
ERISA RESTRICTED CERTIFICATE (WITHOUT GIVING EFFECT TO CLAUSE (b)(ii) OF SUCH
DEFINITION)) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR
RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR (E) (OTHER THAN WITH
RESPECT TO A RESIDUAL CERTIFICATE) 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 REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
LAST TWO PAGES OF THIS CERTIFICATE.
THE NOTIONAL AMOUNT ON WHICH THE INTEREST PAYABLE TO THE HOLDERS OF THE CLASS
X-C CERTIFICATES IS BASED WILL BE REDUCED AS A RESULT OF PRINCIPAL PAYMENTS AND
LOSSES ON THE MORTGAGE LOANS. ACCORDINGLY, THE INTEREST PAYABLE PURSUANT TO THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. THIS CERTIFICATE CONSTITUTES
A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
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 INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL
BUYER OR (OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE) AN INSTITUTIONAL
ACCREDITED INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL
IF SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A.
THE PASS-THROUGH RATE ON THE CLASS X-C CERTIFICATES APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF
WILL BE A VARIABLE RATE, WHICH WILL INITIALLY BE AS THE MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND
OF THE CLOSING DATE 0.0469% AND THEREAFTER AS SET PREPAYMENTS RECEIVED ON OR BEFORE CUT-OFF DATE:
FORTH IN THE POOLING AND SERVICING AGREEMENT $3,953,465,462
DENOMINATION: $$[500,000,000] [500,000,000] MASTER SERVICERS: KEYCORP REAL ESTATE CAPITAL
[500,000,000] [500,000,000] [500,000,000] MARKETS, INC. AND BANK OF AMERICA, NATIONAL
[500,000,000] [500,000,000] [453,465,462] ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SPECIAL SERVICER: LNR PARTNERS, INC.
MAY 1, 2007
TRUSTEE: ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: WITH RESPECT TO EACH MORTGAGE LOAN,
THE LATER OF MAY 1, 2007 OR THE DATE OF ORIGINATION
OF SUCH MORTGAGE LOAN (OR, WITH RESPECT TO LOAN NOS.
1 AND 16, MAY 5, 2007) CUSIP NO.: [________]
CLOSING DATE: MAY 8, 2007 ISIN NO.: [__________]
FIRST DISTRIBUTION DATE: CERTIFICATE NO.: ▇-▇-▇ -▇ -▇ -▇ -▇-▇-▇-▇
JUNE 11, 2007
APPROXIMATE AGGREGATE NOTIONAL AMOUNT OF THE CLASS
X-C CERTIFICATES AS OF THE CLOSING DATE:
$3,953,465,462
CLASS X-C CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing fixed rate balloon
and fully amortizing mortgage loans (the "Mortgage Loans"), all payments on or
collections in respect of the Mortgage Loans due after the Cut-off Date, all REO
Properties and revenues received in respect thereof, the mortgagee's rights
under the Insurance Policies, any Assignment of Leases, and any guaranties,
escrow accounts or other collateral as security for the Mortgage Loans and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Account, the Interest Reserve Account, the Excess Interest
Distribution Account and the REO Accounts, formed and sold by
GE COMMERCIAL MORTGAGE CORPORATION
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GE
COMMERCIAL MORTGAGE CORPORATION, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class X-C Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of May 1, 2007 (the "Pooling and Servicing
Agreement"), among GE Commercial Mortgage Corporation (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Servicers and the Special Servicer. A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated
as Certificates of the series specified on the face hereof (herein called the
"Certificates") and representing the percentage interest in the Class of
Certificates specified on the face hereof. The Certificates are designated as
the GE Commercial Mortgage Corporation, Commercial Mortgage Pass-Through
Certificates, Series 2007-C1 and are issued in thirty classes as specifically
set forth in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the Trustee
shall distribute to the Person in whose name this Certificate is registered as
of the related Record Date, an amount equal to such Person's pro rata share
(based on the Percentage Interest represented by this Certificate) of that
portion of the aggregate amount of interest then distributable, if any,
allocable to the Class of Certificates of the same Class as this Certificate for
such Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate will not be entitled to distributions in
respect of principal. Holders of this Certificate may be entitled to Yield
Maintenance Charges as provided in the Pooling and Servicing Agreement. All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year consisted
of 360 days and each month consisted of 30 days) during the Interest Accrual
Period relating to such Distribution Date at the Class X-C Pass-Through Rate
specified above on the Notional Amount of this Certificate immediately prior to
such Distribution Date, as specified above. Interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
The Certificates are limited in right of payment to, among other things,
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Account will be held in the name of the Trustee, on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicers (with respect to the Certificate Account) or the Trustee (with respect
to the Distribution Account) will be authorized to make withdrawals therefrom.
Amounts on deposit in such accounts may be invested in Permitted Investments.
Interest or other income (i) in the Certificate Account will be paid to the
Servicers and (ii) in the Distribution Account will be paid to the Trustee as
set forth in the Pooling and Servicing Agreement. As provided in the Pooling and
Servicing Agreement, withdrawals from the Certificate Account and the
Distribution Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class of
Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder has provided the Trustee with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity having appropriate facilities
therefor. The final distribution on this Certificate shall be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
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 Section 4.01(g) of the Pooling and Servicing Agreement shall
not have been surrendered for cancellation within six months after the time
specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders to surrender their Certificates for
cancellation in order to receive the final distribution with respect thereto. If
within one year after the second notice all such Certificates shall not have
been surrendered for cancellation, the Trustee, directly or through an agent,
shall take such steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it deems 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 under the Pooling and Servicing Agreement by the Trustee as
a result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with Section 4.01(g) of the Pooling and
Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register only upon surrender of this Certificate for
registration of transfer at the office of the Certificate Registrar, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney-in-fact duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized Denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class X-P
and Class X-C Certificates will be issued in book-entry form through the
facilities of DTC in Denominations of not less than $1,000,000 initial Notional
Amount and in integral multiples of $1 in excess thereof, with one Certificate
of such Class evidencing an additional amount equal to the remainder of the
initial Notional Amount of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Offered Certificates will be issued in book-entry form
through the facilities of DTC in Denominations of not less than $10,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. Subject to the terms
of the Pooling and Servicing Agreement, the Non-Registered Certificates (other
than the Class X Certificates and the Residual Certificates) will be issued in
book-entry form through the facilities of DTC in Denominations of not less than
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. The
Class R and Class LR Certificates will be issued in fully registered,
certificated form, in Denominations representing Percentage Interests of not
less than 20%.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) thereof. 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 in Section 5.02(b) of the Pooling and Servicing Agreement) incurred
by the Certificate Registrar in connection with such transfer. With respect to
any transfer or exchange of any Certificate, the Certificate Registrar may
require payment by each Transferor of a sum sufficient to cover any tax, expense
or other governmental charge payable in connection with any such transfer or
exchange.
The Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar and any of their agents may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
The Depositor, the Servicers, the Special Servicer, the Trustee, the Certificate
Registrar or any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time by the
Depositor, the Servicers, the Special Servicer and the Trustee, without the
consent of any of the Certificateholders or the holder of any Serviced Pari
Passu Loan or Serviced B Note: to cure any ambiguity; to cause the provisions
therein to conform or be consistent with or in furtherance of the statements
made with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement in the Private Placement Memorandum or the Prospectus or to correct or
supplement any provisions therein or in the Pooling and Servicing Agreement,
that may be inconsistent with any other provision therein or in the Pooling and
Servicing Agreement, or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of (i) the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC (ii) each Grantor Trust as a grantor trust (at all
times that any Certificate is outstanding) or (iii) any trust fund in which a
Serviced Pari Passu Loan or Serviced B Note is included as a REMIC (at all times
that any related securities are outstanding) or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC pursuant to the Code that would be a claim against the Trust
Fund, the Lower-Tier REMIC or the Upper-Tier REMIC; provided that, the Trustee
has received an Opinion of Counsel addressed to the parties to the Pooling and
Servicing Agreement (at the expense of the party requesting the amendment) to
the effect that (a) such action is necessary or desirable to maintain such
qualification or to avoid or minimize the risk of the imposition of any such tax
and (b) such action will not adversely affect in any material respect the
interests of any Certificateholder or any holder of a related Serviced Pari
Passu Loan or Serviced B Note; to change the timing and/or nature of deposits
into the Certificate Account, any Serviced Whole Loan Custodial Account, the
Distribution Account or REO Account or to change the name in which the
Certificate Account or the Serviced Whole Loan Custodial Account is maintained,
provided that (a) the P&I Advance Date shall in no event be later than the
related Distribution Date, (b) such change shall not, as evidenced by an Opinion
of Counsel addressed to the parties to the Pooling and Servicing Agreement (at
the expense of the party requesting the amendment), adversely affect in any
material respect the interests of any Certificateholder or any holder of a
related Serviced Pari Passu Loan or Serviced B Note and (c) such change shall
not result in the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates or any Class of Serviced Pari Passu
Loan Securities, as evidenced by a letter from each Rating Agency to such
effect; to modify, eliminate or add to the provisions of Section 5.02(d) of the
Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," provided that, such change shall not, as evidenced by an
Opinion of Counsel addressed to the parties to the Pooling and Servicing
Agreement, cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or
any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement or any other change, provided that, such action shall not adversely
affect in any material respect the interests of any Certificateholder or any
holder of a related Serviced Pari Passu Loan or Serviced B Note not consenting
thereto as evidenced by an Opinion of Counsel or by written confirmation from
the Rating Agencies to the effect that the change would not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or any Class of Serviced Pari Passu Loan Securities;
and to amend or supplement any provision in the Pooling and Servicing Agreement
to the extent necessary to maintain the rating or ratings assigned to each Class
of Certificates by each applicable Rating Agency and any other applicable rating
agency; provided that, such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or any Class of Serviced Pari Passu Loan Securities, as evidenced
by a letter from each applicable Rating Agency and any other applicable rating
agency to such effect.
The Pooling and Servicing Agreement may also be amended from time to time by
the Depositor, the Servicers, the Special Servicer and the Trustee with the
consent of the Holders of Certificates evidencing in the aggregate not less than
66 2/3% of the Percentage Interests of each Class of Certificates affected
thereby for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Pooling and Servicing Agreement or of
modifying in any manner the rights of the Holders of Certificates of such Class;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate, or which are required to be
distributed to the holder of any Serviced Pari Passu Loan or Serviced B
Note without the consent of such holder of any Serviced Pari Passu Loan or
Serviced B Note; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding or the voting rights of the holder of any
Serviced Pari Passu Loan or Serviced B Note without the consent of such
holder of any Serviced Pari Passu Loan or Serviced B Note; or
(iv) modify the definition of Servicing Standard without the consent
of the Holders of all Certificates then outstanding and the consent of the
holder of any related Serviced Pari Passu Loan or Serviced B Note; or
(v) amend Section 11.01 of the Pooling and Servicing Agreement.
No amendment shall be made to the Pooling and Servicing Agreement unless the
Trustee shall have received an Opinion of Counsel that such amendment is
permitted under the Pooling and Servicing Agreement and will not cause the
Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, each
Grantor Trust to fail to qualify as a grantor trust, cause any trust fund in
which a Serviced Pari Passu Loan or Serviced B Note is included as a REMIC or
result in the imposition of a tax on the Trust Fund, the Upper-Tier REMIC or the
Lower-Tier REMIC.
The Sole Certificateholder will have the option, upon 60 days' prior notice
given to each of the parties to the Pooling and Servicing Agreement, which
notice the Trustee is required to promptly forward to Certificateholders and
Rating Agencies in the manner set forth in the Pooling and Servicing Agreement,
to exchange all of its Certificates (other than the Residual Certificates) for
all of the Mortgage Loans and each REO Property (or beneficial interest in the
Mortgaged Property under a Non-Serviced Mortgage Loan) remaining in the Trust
Fund, and thereby effect termination of the Trust Fund and early retirement of
the then outstanding Certificates, on any Distribution Date on which the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates is reduced
to zero.
If the Sole Certificateholder chooses not to exercise such right, or if the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates has not been
reduced to zero, the Servicers or the Special Servicer (in that order) will have
the option, upon 60 days' prior notice given to the Trustee and each of the
other parties to the Pooling and Servicing Agreement, which notice the Trustee
is required to promptly forward to Certificateholders and Rating Agencies in the
manner set forth in the Pooling and Servicing Agreement, to purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is less than 1% of
the aggregate Cut-off Date Principal Balance of all the Mortgage Loans.
Subject to Section 9.02 of the Pooling and Servicing Agreement, the
obligations created by the Pooling and Servicing Agreement and the Trust Fund
created thereby (other than the obligation of the Trustee to provide for and
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the United States to
the Court of St. ▇▇▇▇▇, living on the date hereof.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to
be duly executed under this official seal.
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar under
the Pooling and Servicing Agreement.
By:
------------------------------------
AUTHORIZED REPRESENTATIVE
Dated: May 8, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X-C CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
-----------------------------------
AUTHORIZED REPRESENTATIVE
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or
upon transfer of, an interest in this Remaining Principal Amount of Notation
Date Book-Entry Certificate Book-Entry Certificate Made By
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _______________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
__________________________________ account number _______________ or, if mailed
by check, to _______________________________________. Statements should be
mailed to _______________________________________________________________. This
information is provided by assignee named above, or ___________________________,
as its agent.
EXHIBIT A-29
GE COMMERCIAL MORTGAGE CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-C1, CLASS R
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
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 OR (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, SUBJECT IN EACH OF THE FOREGOING CASES TO THE
COMPLETION AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST TWO PAGES OF THIS
CERTIFICATE.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL
BUYER OR (OTHER THAN WITH RESPECT TO A RESIDUAL) AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
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 SECTION 4975 OF 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.
THIS CERTIFICATE REPRESENTS OWNERSHIP OF A "RESIDUAL INTEREST" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G(a)(2) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
EACH TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE
ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY TO
DISQUALIFIED ORGANIZATIONS, NON-U.S. PERSONS OR AGENTS OF EITHER, AS SET FORTH
IN SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT AND SHALL BE REQUIRED TO
FURNISH AN AFFIDAVIT TO THE TRANSFEROR AND THE TRUSTEE TO THE EFFECT THAT, AMONG
OTHER THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED
IN CODE SECTION 860E(e)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER
MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED
TRANSFEREE, (B) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND
INTENDS TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, (C) IT UNDERSTANDS THAT
IT MAY INCUR TAX LIABILITIES WITH RESPECT TO THIS CERTIFICATE IN EXCESS OF CASH
FLOWS GENERATED HEREBY, (D) IT INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING
THIS CERTIFICATE AS THEY BECOME DUE, (E) IT WILL NOT CAUSE INCOME WITH RESPECT
TO THIS CERTIFICATE TO BE ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR
FIXED BASE (WITHIN THE MEANING OF AN APPLICABLE INCOME TAX TREATY) OF ITS OWN OR
ANY OTHER U.S. PERSON, AND (F) IT WILL NOT TRANSFER THIS CERTIFICATE TO ANY
PERSON OR ENTITY THAT DOES NOT PROVIDE A SIMILAR AFFIDAVIT. ANY PURPORTED
TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A PERMITTED
TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE ABSOLUTELY
NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE. THIS
CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST," AS DEFINED IN
TREASURY REGULATIONS SECTION 1.860E-l(c), AND THEREFORE, TRANSFERS OF THIS
CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO
SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE
DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY
ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE AND EITHER TO
TRANSFER AT A MINIMUM PRICE OR TO AN ELIGIBLE TRANSFEREE AS SPECIFIED IN
REGULATIONS.
PERCENTAGE INTEREST EVIDENCED BY THIS CERTIFICATE: APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF
100% THE MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND
PREPAYMENTS RECEIVED ON OR BEFORE CUT-OFF DATE:
DATE OF POOLING AND SERVICING AGREEMENT: AS OF $3,953,465,462
MAY 1, 2007
MASTER SERVICERS: KEYCORP REAL ESTATE CAPITAL MARKETS,
CUT-OFF DATE: WITH RESPECT TO EACH MORTGAGE LOAN, INC. AND BANK OF AMERICA, NATIONAL ASSOCIATION
THE LATER OF MAY 1, 2007 OR THE DATE OF ORIGINATION
OF SUCH MORTGAGE LOAN (OR, WITH RESPECT TO LOAN NOS. SPECIAL SERVICER: LNR PARTNERS, INC.
1 AND 16, MAY 5, 2007)
TRUSTEE: ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
CLOSING DATE: MAY 8, 2007
FIRST DISTRIBUTION DATE:
JUNE 11, 2007 CERTIFICATE NO.: R-1
CLASS R PERCENTAGE INTEREST: 100%
CLASS R CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing fixed rate balloon
and fully amortizing mortgage loans (the "Mortgage Loans"), all payments on or
collections in respect of the Mortgage Loans due after the Cut-off Date, all REO
Properties and revenues received in respect thereof, the mortgagee's rights
under the Insurance Policies, any Assignment of Leases, and any guaranties,
escrow accounts or other collateral as security for the Mortgage Loans and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Account, the Interest Reserve Account, the Excess Interest
Distribution Account and the REO Accounts, formed and sold by
GE COMMERCIAL MORTGAGE CORPORATION
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GE
COMMERCIAL MORTGAGE CORPORATION, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
THIS CERTIFIES THAT [ ]
is the registered owner of the interest evidenced by this Certificate in the
Class R Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of May 1, 2007 (the "Pooling and Servicing
Agreement"), among GE Commercial Mortgage Corporation (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Servicers and the Special Servicer. A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated
as Certificates of the series specified on the face hereof (herein called the
"Certificates") and representing the percentage interest in the Class of
Certificates specified on the face hereof. The Certificates are designated as
the GE Commercial Mortgage Corporation, Commercial Mortgage Pass-Through
Certificates, Series 2007-C1 and are issued in thirty classes as specifically
set forth in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
This Class R Certificate represents ownership of a "residual interest" in a
"real estate mortgage investment conduit," as those terms are defined,
respectively, in Sections 860G(a)(1) and 860D of the Internal Revenue Code of
1986, as amended. Each Holder of this Certificate, by acceptance hereof, agrees
to treat, and take no action inconsistent with the treatment of, this
Certificate in accordance with the preceding sentence for purposes of federal
income taxes, state and local income and franchise taxes and other taxes imposed
on or measured by income. The Holder of the largest Percentage Interest in the
Class R Certificates shall be the "tax matters person" for the Upper-Tier REMIC
pursuant to Treasury Regulations Section 1.860F-4(d), and the Trustee is hereby
irrevocably designated and shall serve as attorney-in-fact and agent for any
such Person that is the "tax matters person."
Pursuant to the terms of the Pooling and Servicing Agreement, distributions,
if any, on this Certificate shall be made by the Trustee to the extent and
subject to the limitations set forth in the Pooling and Servicing Agreement, on
the Distribution Date to the Person in whose name this Certificate is registered
as of the related Record Date. All sums distributable on this Certificate are
payable in the coin or currency of the United States of America as at the time
of payment is legal tender for the payment of public and private debts.
The Certificates are limited in right of payment to, among other things,
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Account will be held in the name of the Trustee, on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicers (with respect to the Certificate Account) or the Trustee (with respect
to the Distribution Account) will be authorized to make withdrawals therefrom.
Amounts on deposit in such accounts may be invested in Permitted Investments.
Interest or other income (i) in the Certificate Account will be paid to the
Servicers and (ii) in the Distribution Account will be paid to the Trustee as
set forth in the Pooling and Servicing Agreement. As provided in the Pooling and
Servicing Agreement, withdrawals from the Certificate Account and the
Distribution Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class of
Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder has provided the Trustee with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity having appropriate facilities
therefor. The final distribution on this Certificate shall be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
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 Section 4.01(g) of the Pooling and Servicing Agreement shall
not have been surrendered for cancellation within six months after the time
specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders to surrender their Certificates for
cancellation in order to receive the final distribution with respect thereto. If
within one year after the second notice all such Certificates shall not have
been surrendered for cancellation, the Trustee, directly or through an agent,
shall take such steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it deems 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 under the Pooling and Servicing Agreement by the Trustee as
a result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with Section 4.01(g) of the Pooling and
Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register only upon surrender of this Certificate for
registration of transfer at the office of the Certificate Registrar, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney-in-fact duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized Denominations will be issued to the designated transferee or
transferees.
Each Person who has or who acquires any Ownership Interest in a Class R
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the following provisions and to have
irrevocably authorized the Trustee under Section 5.02(d) of the Pooling and
Servicing Agreement to deliver payments to a Person other than such Person. The
rights of each Person acquiring any Ownership Interest in a Class R Certificate
are expressly subject to the following provisions: (A) No Person holding or
acquiring any Ownership Interest in a Class R Certificate shall be a
Disqualified Organization or agent thereof (including a nominee, middleman or
similar person) (an "Agent"), a Plan or a Person acting on behalf of or
investing the assets of a Plan, including any entity whose underlying assets
include Plan Assets by reason of investment in the entity to such Plan and the
application of Department of Labor Regulation ss. 2510.3-101 (such Plan or
Person, an "ERISA Prohibited Holder") or a Non-U.S. Person and shall promptly
notify the Servicers, the Trustee, the Certificate Registrar of any change or
impending change to such status; (B) In connection with any proposed Transfer of
any Ownership Interest in a Class R Certificate, the Certificate Registrar shall
require delivery to it, and no Transfer of any Class R Certificate shall be
registered until the Certificate Registrar receives, an affidavit substantially
in the form attached to the Pooling and Servicing Agreement as Exhibit D-1 (a
"Transfer Affidavit") 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 and not a
Disqualified Organization or Agent thereof, an ERISA Prohibited Holder or a
Non-U.S. Person, that it historically has paid its debts as they have come due
and intends to do so in the future, that it understands that as the Holder of an
Ownership Interest it may incur tax liabilities in excess of cash flows
generated by the residual interest and that it will not transfer such Ownership
Interest such that income therefrom would be attributable to a foreign permanent
establishment or fixed base, within the meaning of an applicable income tax
treaty, of such proposed transferee or any other U.S. Person and that it has
reviewed the provisions of Section 5.02(d) of the Pooling and Servicing
Agreement and agrees to be bound by them; (C) Notwithstanding the delivery of a
Transfer Affidavit by a proposed Transferee under clause (B) above, if the
Certificate Registrar has actual knowledge that the proposed Transferee is a
Disqualified Organization or Agent thereof, an ERISA Prohibited Holder or a
Non-U.S. Person or is not a Permitted Transferee, no Transfer of an Ownership
Interest in a Class R Certificate to such proposed Transferee shall be effected;
and (D) Each Person holding or acquiring any Ownership Interest in a Class R
Certificate shall agree (1) to require a Transfer Affidavit from any prospective
Transferee to whom such Person attempts to transfer its Ownership Interest in
such Class R Certificate and (2) not to transfer its Ownership Interest in such
Class R Certificate unless it provides to the Certificate Registrar a letter
substantially in the form attached to the Pooling and Servicing Agreement as
Exhibit D-2 (a "Transferor Letter") certifying that, among other things, it has
no actual knowledge that such prospective Transferee is a Disqualified
Organization, an Agent thereof, an ERISA Prohibited Holder or a Non-U.S. Person.
Subject to the terms of the Pooling and Servicing Agreement, the Class X-P
and Class X-C Certificates will be issued in book-entry form through the
facilities of DTC in Denominations of not less than $1,000,000 initial Notional
Amount and in integral multiples of $1 in excess thereof, with one Certificate
of such Class evidencing an additional amount equal to the remainder of the
initial Notional Amount of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Offered Certificates will be issued in book-entry form
through the facilities of DTC in Denominations of not less than $10,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. Subject to the terms
of the Pooling and Servicing Agreement, the Non-Registered Certificates (other
than the Class X Certificates and the Residual Certificates) will be issued in
book-entry form through the facilities of DTC in Denominations of not less than
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. The
Class R and Class LR Certificates will be issued in fully registered,
certificated form, in Denominations representing Percentage Interests of not
less than 20%.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) thereof. 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 in Section 5.02(b) of the Pooling and Servicing Agreement) incurred
by the Certificate Registrar in connection with such transfer. With respect to
any transfer or exchange of any Certificate, the Certificate Registrar may
require payment by each Transferor of a sum sufficient to cover any tax, expense
or other governmental charge payable in connection with any such transfer or
exchange.
The Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar and any of their agents may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
The Depositor, the Servicers, the Special Servicer, the Trustee, the Certificate
Registrar or any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time by the
Depositor, the Servicers, the Special Servicer and the Trustee without the
consent of any of the Certificateholders or the holder of any Serviced Pari
Passu Loan or Serviced B Note: to cure any ambiguity; to cause the provisions
therein to conform or be consistent with or in furtherance of the statements
made with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement in the Private Placement Memorandum or the Prospectus or to correct or
supplement any provisions therein or in the Pooling and Servicing Agreement,
that may be inconsistent with any other provision therein or in the Pooling and
Servicing Agreement, or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of (i) the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC (ii) each Grantor Trust as a grantor trust (at all
times that any Certificate is outstanding) or (iii) any trust fund in which a
Serviced Pari Passu Loan or Serviced B Note is included as a REMIC (at all times
that any related securities are outstanding) or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC pursuant to the Code that would be a claim against the Trust
Fund, the Lower-Tier REMIC or the Upper-Tier REMIC; provided that, the Trustee
has received an Opinion of Counsel addressed to the parties to the Pooling and
Servicing Agreement (at the expense of the party requesting the amendment) to
the effect that (a) such action is necessary or desirable to maintain such
qualification or to avoid or minimize the risk of the imposition of any such tax
and (b) such action will not adversely affect in any material respect the
interests of any Certificateholder or any holder of a related Serviced Pari
Passu Loan or Serviced B Note; to change the timing and/or nature of deposits
into the Certificate Account, any Serviced Whole Loan Custodial Account, the
Distribution Account or REO Account or to change the name in which the
Certificate Account or the Serviced Whole Loan Custodial Account is maintained,
provided that (a) the P&I Advance Date shall in no event be later than the
related Distribution Date, (b) such change shall not, as evidenced by an Opinion
of Counsel addressed to the parties to the Pooling and Servicing Agreement (at
the expense of the party requesting the amendment), adversely affect in any
material respect the interests of any Certificateholder or any holder of a
related Serviced Pari Passu Loan or Serviced B Note and (c) such change shall
not result in the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates or any Class of Serviced Pari Passu
Loan Securities, as evidenced by a letter from each Rating Agency to such
effect; to modify, eliminate or add to the provisions of Section 5.02(d) of the
Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," provided that, such change shall not, as evidenced by an
Opinion of Counsel addressed to the parties to the Pooling and Servicing
Agreement, cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or
any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement or any other change, provided that, such action shall not adversely
affect in any material respect the interests of any Certificateholder or any
holder of a related Serviced Pari Passu Loan or Serviced B Note not consenting
thereto as evidenced by an Opinion of Counsel or by written confirmation from
the Rating Agencies to the effect that the change would not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or any Class of Serviced Pari Passu Loan Securities;
and to amend or supplement any provision in the Pooling and Servicing Agreement
to the extent necessary to maintain the rating or ratings assigned to each Class
of Certificates by each applicable Rating Agency and any other applicable rating
agency; provided that, such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or any Class of Serviced Pari Passu Loan Securities, as evidenced
by a letter from each applicable Rating Agency and any other applicable rating
agency to such effect.
The Pooling and Servicing Agreement may also be amended from time to time by
the Depositor, the Servicers, the Special Servicer and the Trustee with the
consent of the Holders of Certificates evidencing in the aggregate not less than
66 2/3% of the Percentage Interests of each Class of Certificates affected
thereby for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Pooling and Servicing Agreement or of
modifying in any manner the rights of the Holders of Certificates of such Class;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate, or which are required to be
distributed to the holder of any Serviced Pari Passu Loan or Serviced B
Note without the consent of such holder of any Serviced Pari Passu Loan or
Serviced B Note; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding or the voting rights of the holder of any
Serviced Pari Passu Loan or Serviced B Note without the consent of such
holder of any Serviced Pari Passu Loan or Serviced B Note; or
(iv) modify the definition of Servicing Standard without the consent
of the Holders of all Certificates then outstanding and the consent of the
holder of any related Serviced Pari Passu Loan or Serviced B Note; or
(v) amend Section 11.01 of the Pooling and Servicing Agreement.
No amendment shall be made to the Pooling and Servicing Agreement unless the
Trustee shall have received an Opinion of Counsel that such amendment is
permitted under the Pooling and Servicing Agreement and will not cause the
Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, cause
any REMIC to fail to qualify as a REMIC or result in the imposition of a tax on
the Trust Fund, the Upper-Tier REMIC or Lower-Tier REMIC.
The Sole Certificateholder will have the option, upon 60 days' prior notice
given to each of the parties to the Pooling and Servicing Agreement, which
notice the Trustee is required to promptly forward to Certificateholders and
Rating Agencies in the manner set forth in the Pooling and Servicing Agreement,
to exchange all of its Certificates (other than the Residual Certificates) for
all of the Mortgage Loans and each REO Property (or beneficial interest in the
Mortgaged Property under a Non-Serviced Mortgage Loan) remaining in the Trust
Fund, and thereby effect termination of the Trust Fund and early retirement of
the then outstanding Certificates, on any Distribution Date on which the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates is reduced
to zero.
If the Sole Certificateholder chooses not to exercise such right, or if the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates has not been
reduced to zero, the Servicers or the Special Servicer (in that order) will have
the option, upon 60 days' prior notice given to the Trustee, and each of the
parties to the Pooling and Servicing Agreement, which notice the Trustee is
required to promptly forward to Certificateholders and Rating Agencies in the
manner set forth in the Pooling and Servicing Agreement, to purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is less than 1% of
the aggregate Cut-off Date Principal Balance of all the Mortgage Loans.
Subject to Section 9.02 of the Pooling and Servicing Agreement, the
obligations created by the Pooling and Servicing Agreement and the Trust Fund
created thereby (other than the obligation of the Trustee to provide for and
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the United States to
the Court of St. ▇▇▇▇▇, living on the date hereof.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to
be duly executed under this official seal.
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar under
the Pooling and Servicing Agreement.
By:
------------------------------------
AUTHORIZED REPRESENTATIVE
Dated: May 8, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
------------------------------------
AUTHORIZED REPRESENTATIVE
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _______________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
__________________________________ account number _______________ or, if mailed
by check, to _______________________________________. Statements should be
mailed to _______________________________________________________________. This
information is provided by assignee named above, or ___________________________,
as its agent
EXHIBIT A-30
GE COMMERCIAL MORTGAGE CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-C1, CLASS LR
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
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 OR (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, SUBJECT IN EACH OF THE FOREGOING CASES TO THE
COMPLETION AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST TWO PAGES OF THIS
CERTIFICATE.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL
BUYER OR (OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE) AN INSTITUTIONAL
ACCREDITED INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL
IF SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A.
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 SECTION 4975 OF 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.
THIS CERTIFICATE REPRESENTS OWNERSHIP OF A "RESIDUAL INTEREST" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN
SECTIONS 860G(a)(2) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
EACH TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE
ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY TO
DISQUALIFIED ORGANIZATIONS, NON-U.S. PERSONS OR AGENTS OF EITHER, AS SET FORTH
IN SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT AND SHALL BE REQUIRED TO
FURNISH AN AFFIDAVIT TO THE TRANSFEROR AND THE TRUSTEE TO THE EFFECT THAT, AMONG
OTHER THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED
IN CODE SECTION 860E(e)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER
MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED
TRANSFEREE, (B) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND
INTENDS TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, (C) IT UNDERSTANDS THAT
IT MAY INCUR TAX LIABILITIES WITH RESPECT TO THIS CERTIFICATE IN EXCESS OF CASH
FLOWS GENERATED HEREBY, (D) IT INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING
THIS CERTIFICATE AS THEY BECOME DUE, (E) IT WILL NOT CAUSE INCOME WITH RESPECT
TO THIS CERTIFICATE TO BE ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR
FIXED BASE (WITHIN THE MEANING OF AN APPLICABLE INCOME TAX TREATY) OF ITS OWN OR
ANY OTHER U.S. PERSON, AND (F) IT WILL NOT TRANSFER THIS CERTIFICATE TO ANY
PERSON OR ENTITY THAT DOES NOT PROVIDE A SIMILAR AFFIDAVIT. ANY PURPORTED
TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A PERMITTED
TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE ABSOLUTELY
NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE. THIS
CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST," AS DEFINED IN
TREASURY REGULATIONS SECTION 1.860E-l(c), AND THEREFORE, TRANSFERS OF THIS
CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO
SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE
DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY
ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE AND EITHER TO
TRANSFER AT A MINIMUM PRICE OR TO AN ELIGIBLE TRANSFEREE AS SPECIFIED IN
REGULATIONS.
PERCENTAGE INTEREST EVIDENCED BY THIS CERTIFICATE: APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF
100% THE MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND
PREPAYMENTS RECEIVED ON OR BEFORE CUT-OFF DATE:
DATE OF POOLING AND SERVICING AGREEMENT: AS OF $3,953,465,462
MAY 1, 2007
MASTER SERVICERS: KEYCORP REAL ESTATE CAPITAL MARKETS,
CUT-OFF DATE: WITH RESPECT TO EACH MORTGAGE LOAN, INC. AND BANK OF AMERICA, NATIONAL ASSOCIATION
THE LATER OF MAY 1, 2007 OR THE DATE OF ORIGINATION
OF SUCH MORTGAGE LOAN (OR, WITH RESPECT TO LOAN NOS. SPECIAL SERVICER: LNR PARTNERS, INC.
1 AND 16, MAY 5, 2007)
TRUSTEE: WELSS FARGO BANK, NATIONAL ASSOCIATION
CLOSING DATE: MAY 8, 2007
FIRST DISTRIBUTION DATE: CERTIFICATE NO.: LR-1
JUNE 11, 2007
CLASS LR PERCENTAGE INTEREST: 100%
CLASS LR CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing fixed rate balloon
and fully amortizing mortgage loans (the "Mortgage Loans"), all payments on or
collections in respect of the Mortgage Loans due after the Cut-off Date, all REO
Properties and revenues received in respect thereof, the mortgagee's rights
under the Insurance Policies, any Assignment of Leases, and any guaranties,
escrow accounts or other collateral as security for the Mortgage Loans and such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Account, the Interest Reserve Account, the Excess Interest
Distribution Account and the REO Accounts, formed and sold by
GE COMMERCIAL MORTGAGE CORPORATION
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GE
COMMERCIAL MORTGAGE CORPORATION, THE MASTER SERVICERS, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES.
THIS CERTIFIES THAT [ ]
is the registered owner of the interest evidenced by this Certificate in the
Class LR Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of May 1, 2007 (the "Pooling and Servicing
Agreement"), among GE Commercial Mortgage Corporation (hereinafter called the
"Depositor", which term includes any successor entity under the Pooling and
Servicing Agreement), the Trustee, the Servicers and the Special Servicer. A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates designated
as Certificates of the series specified on the face hereof (herein called the
"Certificates") and representing the percentage interest in the Class of
Certificates specified on the face hereof. The Certificates are designated as
the GE Commercial Mortgage Corporation, Commercial Mortgage Pass-Through
Certificates, Series 2007-C1 and are issued in thirty classes as specifically
set forth in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of any
conflict between terms specified in this Certificate and terms specified in the
Pooling and Servicing Agreement, the terms of the Pooling and Servicing
Agreement shall govern.
This Class LR Certificate represents ownership of a "residual interest" in a
"real estate mortgage investment conduit," as those terms are defined,
respectively, in Sections 860G(a)(1) and 860D of the Internal Revenue Code of
1986, as amended. Each Holder of this Certificate, by acceptance hereof, agrees
to treat, and take no action inconsistent with the treatment of, this
Certificate in accordance with the preceding sentence for purposes of federal
income taxes, state and local income and franchise taxes and other taxes imposed
on or measured by income. The Holder of the largest Percentage Interest in the
Class LR Certificates shall be the "tax matters person" for the Lower-Tier REMIC
pursuant to Treasury Regulations Section 1.860F-4(d), and the Trustee is hereby
irrevocably designated and shall serve as attorney-in-fact and agent for any
such Person that is the "tax matters person."
Pursuant to the terms of the Pooling and Servicing Agreement, distributions,
if any, on this Certificate shall be made by the Trustee to the extent and
subject to the limitations set forth in the Pooling and Servicing Agreement, on
the Distribution Date to the Person in whose name this Certificate is registered
as of the related Record Date. All sums distributable on this Certificate are
payable in the coin or currency of the United States of America as at the time
of payment is legal tender for the payment of public and private debts.
The Certificates are limited in right of payment to, among other things,
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Account will be held in the name of the Trustee, on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicers (with respect to the Certificate Account) or the Trustee (with respect
to the Distribution Account) will be authorized to make withdrawals therefrom.
Amounts on deposit in such accounts may be invested in Permitted Investments.
Interest or other income (i) in the Certificate Account will be paid to the
Servicers and (ii) in the Distribution Account will be paid to the Trustee as
set forth in the Pooling and Servicing Agreement. As provided in the Pooling and
Servicing Agreement, withdrawals from the Certificate Account and the
Distribution Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a Class of
Certificates shall be made on each Distribution Date (other than the final
distribution on any Certificate) to Certificateholders of record on the related
Record Date by check mailed to the address set forth therefor in the Certificate
Register or, provided that such Certificateholder has provided the Trustee with
wire instructions in writing at least five Business Days prior to the related
Record Date, by wire transfer of immediately available funds to the account of
such Certificateholder at a bank or other entity having appropriate facilities
therefor. The final distribution on this Certificate shall be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
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 Section 4.01(g) of the Pooling and Servicing Agreement shall
not have been surrendered for cancellation within six months after the time
specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders to surrender their Certificates for
cancellation in order to receive the final distribution with respect thereto. If
within one year after the second notice all such Certificates shall not have
been surrendered for cancellation, the Trustee, directly or through an agent,
shall take such steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it deems 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 under the Pooling and Servicing Agreement by the Trustee as
a result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with Section 4.01(g) of the Pooling and
Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register only upon surrender of this Certificate for
registration of transfer at the office of the Certificate Registrar, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney-in-fact duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized Denominations will be issued to the designated transferee or
transferees.
Each Person who has or who acquires any Ownership Interest in a Class LR
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the following provisions and to have
irrevocably authorized the Trustee under Section 5.02(d) of the Pooling and
Servicing Agreement to deliver payments to a Person other than such Person. The
rights of each Person acquiring any Ownership Interest in a Class LR Certificate
are expressly subject to the following provisions: (A) No Person holding or
acquiring any Ownership Interest in a Class LR Certificate shall be a
Disqualified Organization or agent thereof (including a nominee, middleman or
similar person) (an "Agent"), a Plan or a Person acting on behalf of or
investing the assets of a Plan, including any entity whose underlying assets
include Plan Assets by reason of investment in the entity to such Plan and the
application of Department of Labor Regulation ss. 2510.3-101 (such Plan or
Person, an "ERISA Prohibited Holder") or a Non-U.S. Person and shall promptly
notify the Servicers, the Trustee, the Certificate Registrar of any change or
impending change to such status; (B) In connection with any proposed Transfer of
any Ownership Interest in a Class LR Certificate, the Certificate Registrar
shall require delivery to it, and no Transfer of any Class LR Certificate shall
be registered until the Certificate Registrar receives, an affidavit
substantially in the form attached to the Pooling and Servicing Agreement as
Exhibit D-1 (a "Transfer Affidavit") 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
and not a Disqualified Organization or Agent thereof, an ERISA Prohibited Holder
or a Non-U.S. Person, that it historically has paid its debts as they have come
due and intends to do so in the future, that it understands that as the Holder
of an Ownership Interest it may incur tax liabilities in excess of cash flows
generated by the residual interest and that it will not transfer such Ownership
Interest such that income therefrom would be attributable to a foreign permanent
establishment or fixed base, within the meaning of an applicable income tax
treaty, of such proposed transferee or any other U.S. Person and that it has
reviewed the provisions of Section 5.02(d) of the Pooling and Servicing
Agreement and agrees to be bound by them; (C) Notwithstanding the delivery of a
Transfer Affidavit by a proposed Transferee under clause (B) above, if the
Certificate Registrar has actual knowledge that the proposed Transferee is a
Disqualified Organization or Agent thereof, an ERISA Prohibited Holder or a
Non-U.S. Person or is not a Permitted Transferee, no Transfer of an Ownership
Interest in a Class LR Certificate to such proposed Transferee shall be
effected; and (D) Each Person holding or acquiring any Ownership Interest in a
Class LR Certificate shall agree (1) to require a Transfer Affidavit from any
prospective Transferee to whom such Person attempts to transfer its Ownership
Interest in such Class LR Certificate and (2) not to transfer its Ownership
Interest in such Class LR Certificate unless it provides to the Certificate
Registrar a letter substantially in the form attached to the Pooling and
Servicing Agreement as Exhibit D-2 (a "Transferor Letter") certifying that,
among other things, it has no actual knowledge that such prospective Transferee
is a Disqualified Organization, an Agent thereof, an ERISA Prohibited Holder or
a Non-U.S. Person.
Subject to the terms of the Pooling and Servicing Agreement, the Class X-P
and Class X-C Certificates will be issued in book-entry form through the
facilities of DTC in Denominations of not less than $1,000,000 initial Notional
Amount and in integral multiples of $1 in excess thereof, with one Certificate
of such Class evidencing an additional amount equal to the remainder of the
initial Notional Amount of such Class. Subject to the terms of the Pooling and
Servicing Agreement, the Offered Certificates will be issued in book-entry form
through the facilities of DTC in Denominations of not less than $10,000 initial
Certificate Balance, and in integral multiples of $1 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class. Subject to the terms
of the Pooling and Servicing Agreement, the Non-Registered Certificates (other
than the Class X Certificates and the Residual Certificates) will be issued in
book-entry form through the facilities of DTC in Denominations of not less than
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class. The
Class R and Class LR Certificates will be issued in fully registered,
certificated form, in Denominations representing Percentage Interests of not
less than 20%.
No fee or service charge shall be imposed by the Certificate Registrar for
its services in respect of any registration of transfer or exchange referred to
in Section 5.02 of the Pooling and Servicing Agreement other than for transfers
to Institutional Accredited Investors as provided in Section 5.02(h) thereof. 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 in Section 5.02(b) of the Pooling and Servicing Agreement) incurred
by the Certificate Registrar in connection with such transfer. With respect to
any transfer or exchange of any Certificate, the Certificate Registrar may
require payment by each Transferor of a sum sufficient to cover any tax, expense
or other governmental charge payable in connection with any such transfer or
exchange.
The Depositor, the Servicers, the Special Servicer, the Trustee, the
Certificate Registrar and any of their agents may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and none of
The Depositor, the Servicers, the Special Servicer, the Trustee, the Certificate
Registrar or any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time by the
Depositor, the Servicers, the Special Servicer and the Trustee without the
consent of any of the Certificateholders or the holder of any Serviced Pari
Passu Loan or Serviced B Note: to cure any ambiguity; to cause the provisions
therein to conform or be consistent with or in furtherance of the statements
made with respect to the Certificates, the Trust or the Pooling and Servicing
Agreement in the Private Placement Memorandum or the Prospectus or to correct or
supplement any provisions therein or in the Pooling and Servicing Agreement,
that may be inconsistent with any other provision therein or in the Pooling and
Servicing Agreement, or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
to maintain the qualification of (i) the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC (ii) each Grantor Trust as a grantor trust (at all
times that any Certificate is outstanding) or (iii) any trust fund in which a
Serviced Pari Passu Loan or Serviced B Note is included as a REMIC (at all times
that any related securities are outstanding) or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC pursuant to the Code that would be a claim against the Trust
Fund, the Lower-Tier REMIC or the Upper-Tier REMIC; provided that, the Trustee
has received an Opinion of Counsel addressed to the parties to the Pooling and
Servicing Agreement (at the expense of the party requesting the amendment) to
the effect that (a) such action is necessary or desirable to maintain such
qualification or to avoid or minimize the risk of the imposition of any such tax
and (b) such action will not adversely affect in any material respect the
interests of any Certificateholder or any holder of a related Serviced Pari
Passu Loan or Serviced B Note; to change the timing and/or nature of deposits
into the Certificate Account, any Serviced Whole Loan Custodial Account, the
Distribution Account or REO Account or to change the name in which the
Certificate Account or the Serviced Whole Loan Custodial Account is maintained,
provided that (a) the P&I Advance Date shall in no event be later than the
related Distribution Date, (b) such change shall not, as evidenced by an Opinion
of Counsel addressed to the parties to the Pooling and Servicing Agreement (at
the expense of the party requesting the amendment), adversely affect in any
material respect the interests of any Certificateholder or any holder of a
related Serviced Pari Passu Loan or Serviced B Note and (c) such change shall
not result in the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates or any Class of Serviced Pari Passu
Loan Securities, as evidenced by a letter from each Rating Agency to such
effect; to modify, eliminate or add to the provisions of Section 5.02(d) of the
Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," provided that, such change shall not, as evidenced by an
Opinion of Counsel addressed to the parties to the Pooling and Servicing
Agreement, cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or
any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement or any other change, provided that, such action shall not adversely
affect in any material respect the interests of any Certificateholder or any
holder of a related Serviced Pari Passu Loan or Serviced B Note not consenting
thereto as evidenced by an Opinion of Counsel or by written confirmation from
the Rating Agencies to the effect that the change would not result in the
downgrade, withdrawal or qualification of the then-current rating assigned to
any Class of Certificates or any Class of Serviced Pari Passu Loan Securities;
and to amend or supplement any provision in the Pooling and Servicing Agreement
to the extent necessary to maintain the rating or ratings assigned to each Class
of Certificates by each applicable Rating Agency and any other applicable rating
agency; provided that, such change shall not result in the downgrade, withdrawal
or qualification of the then-current rating assigned to any Class of
Certificates or any Class of Serviced Pari Passu Loan Securities, as evidenced
by a letter from each applicable Rating Agency and any other applicable rating
agency to such effect.
The Pooling and Servicing Agreement may also be amended from time to time by
the Depositor, the Servicers, the Special Servicer and the Trustee with the
consent of the Holders of Certificates evidencing in the aggregate not less than
66 2/3% of the Percentage Interests of each Class of Certificates affected
thereby for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Pooling and Servicing Agreement or of
modifying in any manner the rights of the Holders of Certificates of such Class;
provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate, or which are required to be
distributed to the holder of any Serviced Pari Passu Loan or Serviced B
Note without the consent of such holder of any Serviced Pari Passu Loan or
Serviced B Note; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding or the voting rights of the holder of any
Serviced Pari Passu Loan or Serviced B Note without the consent of such
holder of any Serviced Pari Passu Loan or Serviced B Note; or
(iv) modify the definition of Servicing Standard without the consent
of the Holders of all Certificates then outstanding and the consent of the
holder of any related Serviced Pari Passu Loan or Serviced B Note; or
(v) amend Section 11.01 of the Pooling and Servicing Agreement.
No amendment shall be made to the Pooling and Servicing Agreement unless the
Trustee shall have received an Opinion of Counsel that such amendment is
permitted under the Pooling and Servicing Agreement and will not cause the
Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC, cause
any REMIC to fail to qualify as a REMIC or result in the imposition of a tax on
the Trust Fund, the Upper-Tier REMIC or Lower-Tier REMIC.
The Sole Certificateholder will have the option, upon 60 days' prior notice
given to each of the parties to the Pooling and Servicing Agreement, which
notice the Trustee is required to promptly forward to Certificateholders and
Rating Agencies in the manner set forth in the Pooling and Servicing Agreement,
to exchange all of its Certificates (other than the Residual Certificates) for
all of the Mortgage Loans and each REO Property (or beneficial interest in the
Mortgaged Property under a Non-Serviced Mortgage Loan) remaining in the Trust
Fund, and thereby effect termination of the Trust Fund and early retirement of
the then outstanding Certificates, on any Distribution Date on which the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates is reduced
to zero.
If the Sole Certificateholder chooses not to exercise such right, or if the
aggregate Certificate Balance of the Offered Certificates, the Class E
Certificates, the Class F Certificates, the Class G Certificates, the Class H
Certificates, the Class J Certificates and the Class K Certificates has not been
reduced to zero, the Servicers or the Special Servicer (in that order) will have
the option, upon 60 days' prior notice given to the Trustee, and each of the
parties to the Pooling and Servicing Agreement, which notice the Trustee is
required to promptly forward to Certificateholders and Rating Agencies in the
manner set forth in the Pooling and Servicing Agreement, to purchase all, but
not less than all, of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan remaining in the Trust Fund, and thereby effect termination of
the Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is less than 1% of
the aggregate Cut-off Date Principal Balance of all the Mortgage Loans.
Subject to Section 9.02 of the Pooling and Servicing Agreement, the
obligations created by the Pooling and Servicing Agreement and the Trust Fund
created thereby (other than the obligation of the Trustee to provide for and
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the United States to
the Court of St. ▇▇▇▇▇, living on the date hereof.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to
be duly executed under this official seal.
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar under
the Pooling and Servicing Agreement.
By:
------------------------------------
AUTHORIZED REPRESENTATIVE
Dated: May 8, 2007
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS LR CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED
POOLING AND SERVICING AGREEMENT.
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
-----------------------------------
AUTHORIZED REPRESENTATIVE
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _______________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _________________________________ for the account of
__________________________________ account number _______________ or, if mailed
by check, to _______________________________________. Statements should be
mailed to _______________________________________________________________. This
information is provided by assignee named above, or ___________________________,
as its agent
EXHIBIT B
MORTGAGE LOAN SCHEDULE
ID Property Name
1 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
2 Wolfchase Galleria
3 Manhattan Apartment Portfolio
3.1 ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
3.2 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
3.3 ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
3.4 ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
3.5 ▇▇-▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
3.6 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
3.7 ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
3.8 ▇▇-▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
3.9 ▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
3.10 165-167 & ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
3.11 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
3.12 ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
3.13 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
3.14 ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
3.15 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
3.16 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
3.17 ▇-▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
3.18 ▇-▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
3.19 ▇-▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
3.20 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
3.21 ▇-▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
3.22 ▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
3.23 ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
3.24 ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
3.25 ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
3.26 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
3.27 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
3.28 ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
3.29 ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
3.30 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
3.31 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
3.32 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
3.33 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
3.34 ▇▇-▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
3.35 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
3.36 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
4 Skyline Portfolio
4.1 One Skyline Tower
4.2 Seven Skyline Place
4.3 Six Skyline Place
4.4 Five Skyline Place
4.5 One Skyline Place
4.6 Four Skyline Place
4.7 Two Skyline Place
4.8 Three Skyline ▇▇▇▇▇
▇ ▇▇ ▇▇▇▇▇▇ Portfolio
7.1 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
7.2 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
7.3 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Garage
8 Four Seasons Resort Maui
9 Pacific Shores
6 The Enclave
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
12 Galleria Officentre
13 ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
14 Crossing at Hobart
15 Palma Sorrento Apartments
16 National Envelope
16.1 ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇
16.2 ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
16.3 ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
16.4 ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
16.5 ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
16.6 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
16.7 ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
16.8 ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇
16.9 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
17 Presbyterian Plano Medical ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Spectrum
20 Piero Apartments
21 Magic Sands Mobile Home Park
22 ▇▇▇▇▇▇▇ Village
23 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
24 Americold Portfolio
24.1 Clearfield
24.2 Murfreesboro
24.3 ▇▇▇▇▇▇▇
24.4 Strasburg
24.5 Amarillo
24.6 Thomasville
24.7 ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇.▇ ▇▇▇▇▇▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
24.9 Syracuse
24.10 Atlanta - Westgate
24.11 ▇▇▇▇▇▇▇
24.12 Turlock
24.13 Nampa
24.14 ▇▇▇▇▇▇▇▇
24.15 Wichita
24.16 Fort ▇▇▇▇▇
24.17 ▇▇▇▇▇▇
24.18 Boston
24.19 ▇▇▇▇▇▇▇▇▇▇
▇▇.▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇ Marine View Plaza
26 Sealy NW Business Center
27 1604 Broadway
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
30 Oakridge Apartments
31 Lebanon Plaza
32 7700 Leesburg Pike
Rollup Springhill Suites Chicago Portfolio
33 Springhill Suites - ▇▇▇▇ Ridge
34 Springhill Suites - ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
36 Orchard Heights
37 ▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇ Luxury Townhomes
40 Cypress Crossroads
41 Clarion LaGuardia Airport Hotel
42 Media Center
43 Westchester Portfolio
43.1 ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇.▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
43.3 Washington Manor
44 ▇▇▇▇▇▇▇ Pointe
45 Backlick Plaza
46 Mansions at Round Rock
47 Arbor Station
48 MWD Bolingbrook Industrial
49 Columbia Hotel Portfolio
49.1 ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇.▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Rollup New Trier Crossed Loans Rollup
50 New Trier Indianapolis
51 New Trier Bakersfield
52 New Trier ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Place
56 Raytheon Building
57 ▇▇▇▇▇▇ Providence
58 Bravo Estates
59 Arcadis - BBL HQ
59.1 Arcadis - BBL HQ - 6711 & ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
59.2 Arcadis - BBL HQ - ▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
60 ▇▇▇▇▇ ▇▇▇▇▇▇ Mobile Home Park
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Rollup Juniper Portfolio
62 Juniper Portfolio-Cumberland
63 Juniper Portfolio-Lakehurst
64 The ▇▇▇▇▇▇▇▇▇▇
65 ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (HSBC)
66 River Park Apartments
67 ▇▇▇▇▇ Store 80
68 Albuquerque Portfolio
68.1 Granada Business ▇▇▇▇▇▇
▇▇.▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Apartments
71 The Pointe at Wimbledon
72 Rialto I & II MHCs
73 Highlands MHC
74 Harbour Run Apartments
75 Holiday Inn Vail Apex
76 Raymour and ▇▇▇▇▇▇▇▇- ▇▇▇▇ of Prussia
77 Remcon Medical Office Portfolio
77.1 Remcon Circle
77.2 Trawood
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Glenview
80 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MHP
82 Tri Park Portfolio
82.1 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇.▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
82.3 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
▇▇ Holiday Inn-Bordeaux
85 2400 Augusta Office Building
86 Barloworld Distribution
87 Nova Stor Self Storage
Rollup Shops at Stadium Towers and Hooters Crossed Portfolio
88 Shops at Stadium Towers
89 Shops at Stadium Towers Hooters
90 Cypress Center
▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇ One Airport Center
93 Tecnofarma
94 ▇▇▇-▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Office
96.1 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
96.2 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
96.3 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
97 Mountain View Plaza
Hilton Village Shopping Center and Hilton Village
▇▇▇▇▇▇
▇▇ ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
100 Crane Building
101 PetsMart/Staples
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Self Storage
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ MHP Portfolio
105.1 Arrowhead Lake
105.2 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇.▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
105.4 Grand Rapids
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
107 North Empire Self Storage
108 ▇▇▇▇▇ Building
109 ▇▇▇▇▇▇ Medical Office Building
110 ▇▇▇▇▇▇▇▇ Apartments
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ Jolla
112 Flying Star Retail Portfolio
112.1 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
112.2 4022 - ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
114 Downtown Plaza
115 229 Fabricante
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇▇▇▇
117 Shops Under Target
118 ▇▇▇▇ MHP
119 Wachovia Plaza Roll Up
119.1 Wachovia Plaza
119.2 Pine ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
122 Tamarack ▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ Holiday Inn Hotel & Suites ▇▇▇▇▇▇
126 Powers Professional Campus
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ RV Resort
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
130 Rivermont Apartments
131 ▇▇▇▇▇ Corning Industrial
132 Holiday Inn Select Wilmington-Brandywine
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇
134 ▇▇▇▇▇ Store 31
135 Harbor Landing
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ I & II
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ Apartments Phase II
139 Claycreek Mini Storage
140 Holiday Inn Express - Waterford
141 Holiday Inn Express Six Flags
142 JMT Warehouse
143 Premier Self Storage -Toa Baja
144 Indiana MHP Portfolio
144.1 Berkshire Pointe
144.2 Beechwood Pointe
144.3 ▇▇▇▇▇▇▇ Pointe
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ Apartments
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ Center Phase 4
149 Northstate Storage Portfolio Myrtle Beach
150 6820 Reseda ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
153 ▇▇▇▇▇▇▇▇▇ Office Building
154 ▇▇. ▇▇▇ ▇▇▇▇ Self Storage
155 The ▇▇▇▇▇▇▇ Works
156 Best Western Ellensburg
157 ▇▇▇▇▇▇▇▇ Gardens
158 ▇▇▇▇▇ Industrial Portfolio
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
160 Ashford Atrium
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
163 ▇▇▇▇▇▇ Oaks MHC
164 Rite Aid - 302 ▇▇▇▇ ▇▇▇▇
165 Best Buy Stevens Point Wisconsin
166 Indian ▇▇▇▇▇
166.1 Woodlake
166.2 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MHC
168 Best Western - Astoria
169 2301 & ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇, ▇▇
173 Walgreens ▇▇▇▇▇▇
174 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇- ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MHC
177 Space Savers NW
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Apartments
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇ The Atrium Offices
182 Briarwood MHC
184 Northern Tool Building
185 Scotts Corner
186 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
187 ▇▇▇▇▇ ▇▇▇▇ Building
188 ▇▇▇▇▇ Gulch Center
189 ▇▇▇▇▇ Store 71
190 306-308 ▇▇▇▇▇▇▇▇▇▇▇▇▇ Avenue
191 Northstate Storage Portfolio Mineral Springs
192 ▇▇▇▇▇ Store 95
193 Northstate Storage Portfolio Swansboro
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Center
196 631 & ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
197 Walgreen's - Mundelein, IL
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ MHC
199 Paradise View Apartments
200 ▇▇▇▇▇▇ Manor
201 730 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Highway
202 Mill Creek Professional Building
EXHIBIT C
FORM OF INVESTMENT REPRESENTATION LETTER
Banc of America Securities LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Deutsche Bank Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ Fargo Bank, National Association
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Services (CMBS) (GE Commercial Mortgage
Corporation, Commercial Mortgage Pass-Through Certificates, Series 2007-C1)
GE Commercial Mortgage Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Legal Department (Real Estate)
Re: Transfer of GE Commercial Mortgage Corporation Commercial Mortgage
Pass-Through Certificates, Series 2007-C1
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement, dated as of May 1, 2007 (the "Pooling and Servicing
Agreement"), by and among GE Commercial Mortgage Corporation, as Depositor,
KeyCorp Real Estate Capital Markets, Inc., as Servicer No. 1, Bank of America,
National Association, as Servicer No. 2, ,LNR Partners, Inc., as Special
Servicer and ▇▇▇▇▇ Fargo Bank, National Association, as Trustee, on behalf of
the holders of GE Commercial Mortgage Corporation, Commercial Mortgage
Pass-Through Certificates, Series 2007-C1 (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 not purchasing a Class R or Class LR
Certificate and the Purchaser is an institutional "accredited
investor" (an entity meeting the requirements of Rule
501(a)(1), (2), (3) or (7) of Regulation D under the
Securities Act of 1933, as amended (the "1933 Act")) and has
such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of
its investment in the Certificates, and the Purchaser and any
accounts for which it is acting are each able to bear the
economic risk of the Purchaser's or such account's investment.
The Purchaser is acquiring the Certificates purchased by it
for its own account or for one or more accounts (each of which
is an "institutional accredited investor") as to each of which
the Purchaser exercises sole investment discretion. The
Purchaser hereby undertakes to reimburse the Trust Fund for
any costs incurred by it in connection with this transfer.
|_| The Purchaser is a "qualified institutional buyer" within the
meaning of Rule 144A ("Rule 144A") promulgated under the
Securities Act of 1933, as amended (the "1933 Act") The
Purchaser is aware that the transfer is being made in reliance
on Rule 144A, and the Purchaser has had the opportunity to
obtain the information required to be provided pursuant to
paragraph (d)(4)(i) of Rule 144A.
2. The Purchaser's intention is to acquire the Certificate (a) for investment
for the Purchaser's own account or (b) for resale to (i) "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 Residual Certificates)
institutional "accredited investors" meeting the requirements of Rule
501(a)(1), (2), (3) or (7) of Regulation D promulgated under the 1933 Act,
pursuant to any other exemption from the registration requirements of the
1933 Act, 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.
---------------------------------------
* Purchaser must include one of the following two certifications.
3. The Purchaser has reviewed each Private Placement Memorandum relating to
the Certificates (collectively, the "Private Placement Memoranda") 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
Memoranda.
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. 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. Person and under applicable law in
effect on the date hereof, no taxes will be required to be
withheld by the Trustee (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. Person, (ii) a duly executed IRS Form
W-8IMY (with 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 U.S. trade or
business or (iv) the duly executed copies of IRS Form W 8IMY
(with appropriate attachments). The Purchaser agrees to
provide to the Certificate Registrar updated [IRS Forms
W-8BEN, IRS Forms W-8IMY or]** IRS Forms 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.
------------------------------
* Each Purchaser must include one of the two alternative certifications.
** Omit for Class R and Class LR.
For this purpose, "U.S. Person" means a citizen or resident of the United
States, a corporation or partnership (except to the extent provided in
applicable Treasury Regulations) or other entity 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 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
such trust, and one or more such U.S. Persons 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. Persons).
8. Please make all payments due on the Certificates:***
|_| (a) by wire transfer to the following account at a bank or
entity in New York, New York, having appropriate facilities
therefor:
Bank:_________________________________________________
ABA#:_________________________________________________
Account #:____________________________________________
Attention:____________________________________________
|_| (b) by mailing a check or draft to the following address:
Very truly yours,
______________________________________
[The Purchaser]
By:_______________________________
Title:
Dated:
-------------------------------
*** Only to be filled out by Purchasers of Definitive Certificates. Please
select (a) or (b).
EXHIBIT D-1
FORM OF TRANSFER AFFIDAVIT
AFFIDAVIT PURSUANT TO SECTION 860E(e)(4) OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
STATE OF )
) ss:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That [he] [she] is [Title of Officer] of [Name of Transferee]
(the "Transferee"), a [description of type of entity] duly organized and
existing under the laws of the [State of __________] [United States], on behalf
of which he makes this affidavit.
2. That the Transferee's Taxpayer Identification Number is
[__________].
3. That the Transferee of a GE Commercial Mortgage Corporation,
Commercial Mortgage Pass-Through Certificates, Series 2007-C1, Class [R] [LR]
Certificate (the "Class [R] [LR] Certificate") is not a Disqualified
Organization (as defined below) or an agent thereof (including nominee,
middleman or other similar person) (an "Agent") or an ERISA Prohibited Holder or
a Non-U.S. Person (as defined below). For these purposes, a "Disqualified
Organization" means any of (i) the United States, any State or political
subdivision thereof, any possession of the United States, or any agency or
instrumentality of any of the foregoing (other than an instrumentality which is
a corporation if all of its activities are subject to tax and a majority of its
board of directors is not selected by such governmental unit), (ii) a foreign
government, any international organization, or any agency or instrumentality of
any of the foregoing, (iii) any organization (other than certain farmers'
cooperatives described in Section 521 of the Code) which is exempt from the tax
imposed by Chapter 1 of the Code (including the tax imposed by Section 511 of
the Code on unrelated business taxable income), (iv) rural electric and
telephone cooperatives described in Section 1381(a)(2)(C) of the Code and (v)
any other Person so designated by the Servicer based upon an Opinion of Counsel
that the holding of an Ownership Interest in a Residual Certificate by such
Person may cause the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify
as a REMIC 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. For
these purposes, "ERISA Prohibited Holder" means an employee benefit plan subject
to Section 406 of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or 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
which is, to a material extent, similar to the foregoing provisions of ERISA or
the Code (each, a "Plan") or a person acting on behalf of or investing the
assets of such a 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 Regulations ss. 2510.3-101. For these purposes, "Non-U.S.
Person" means any person (a) other than a U.S. Person, unless, with respect to
the Transfer of a Residual Certificate, (i) such person holds such Residual
Certificate in connection with the conduct of a trade or business within the
United States and furnishes the Transferor and the Certificate Registrar with an
effective Internal Revenue Service Form W-8ECI (or successor form) or (ii) the
Transferee delivers to both the Transferor and the Certificate Registrar an
opinion of a nationally recognized tax counsel to the effect that such Transfer
is in accordance with the requirements of the Code and the regulations
promulgated thereunder and that such Transfer of the Residual Certificate will
not be disregarded for federal income tax purposes, or (b) who is a U.S. Person
if income of such person with respect to such 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.
4. That the Transferee historically has paid its debts as they have
come due and intends to pay its debts as they come due in the future and the
Transferee intends to pay taxes associated with holding the Class [R] [LR]
Certificate as they become due.
5. That the Transferee understands that it may incur tax liabilities
with respect to the Class [R] [LR] Certificate in excess of any cash flow
generated by the Class [R] [LR] Certificate.
6. That the Transferee agrees not to transfer the Class [R] [LR]
Certificate to any Person or entity unless (a) the Transferee has received from
such Person or entity an affidavit substantially in the form of this Transfer
Affidavit and (b) the Transferee provides to the Certificate Registrar a letter
substantially in the form of Exhibit D-2 to the Pooling and Servicing Agreement
certifying that it has no actual knowledge that such Person or entity is a
Disqualified Organization or an Agent thereof, an ERISA Prohibited Holder or a
Non-U.S. Person and that after conducting a reasonable investigation of the
financial condition of the Person or entity, it has no reason to believe that
such Person or entity does not satisfy the requirements set forth in paragraphs
3 and 4 hereof.
7. That the Transferee agrees to such amendments of the Pooling and
Servicing Agreement, dated as of May 1, 2007 among GE Commercial Mortgage
Corporation, as Depositor, KeyCorp Real Estate Capital Markets, Inc., as
Servicer No. 1, Bank of America, National Association, as Servicer No. 2, LNR
Partners, Inc., as Special Servicer and ▇▇▇▇▇ Fargo Bank, National Association,
as Trustee (the "Pooling and Servicing Agreement"), as may be required to
further effectuate the restrictions on transfer of the Class [R] [LR]
Certificate to such a Disqualified Organization or an Agent thereof, an ERISA
Prohibited Holder or a Non-U.S. Person. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
8. That, if a "tax matters person" is required to be designated with
respect to the [Upper-Tier REMIC] [Lower-Tier REMIC], the Transferee agrees to
act as "tax matters person" if it will own the largest Percentage Interest in
the Class [R][LR] Certificate and to perform the functions of "tax matters
person" of the [Upper-Tier REMIC] [Lower-Tier REMIC] pursuant to Section
10.01(c) of the Pooling and Servicing Agreement, and, in such event, agrees to
the irrevocable designation of the Trustee as the Transferee's agent in
performing the function of "tax matters person."
9. That the Transferee has reviewed, and agrees to be bound by and
to abide by, the provisions of Section 5.02(d) of the Pooling and Servicing
Agreement concerning registration of the transfer and exchange of Class [R] [LR]
Certificates.
10. That the Transferee agrees not to transfer the Class [R][LR]
Certificate such that the income therefrom would be attributable to a foreign
permanent establishment or fixed base, within the meaning of an applicable
income tax treaty, of such Transferee or any other U.S. Person.
11.* Check one of the following, if applicable:
|_| That the present value of the anticipated tax liabilities
associated with holding the Class [R][LR] Certificate does not exceed the sum
of:
(i) the present value of any consideration given to the Transferee
to acquire such Class [R][LR] Certificate;
(ii) the present value of the expected future distributions on such
Class [R][LR] Certificate; and
(iii) the present value of the anticipated tax savings associated
with holding such Class [R][LR] 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.
|_| That the transfer of the Class [R][LR] 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 Class [R][LR] Certificate will only be
taxed in the United States;
(ii) at the time of 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 Investor
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;
----------------------------------------
* Insert appropriate paragraph, if applicable.
(iii) the Transferee will transfer the Class [R][LR] 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 Class [R][LR] 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, by its [Title of Officer] this _____ day of __________,
20__.
[NAME OF TRANSFEREE]
By:____________________________________
[Name of Officer]
[Title of Officer]
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 D-2
FORM OF TRANSFEROR LETTER
[Date]
▇▇▇▇▇ Fargo Bank, National Association
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Services (CMBS) (GE Commercial Mortgage
Corporation, Commercial Mortgage Pass-Through Certificates, Series 2007-C1)
Re: GE Commercial Mortgage Corporation, Commercial Mortgage Pass-Through
Certificates, Series 2007-C1
Ladies and Gentlemen:
[Transferor] has reviewed the attached affidavit of [Transferee],
and has no actual knowledge that such affidavit is not true and has no reason to
believe that the requirements set forth in paragraphs 3 and 10 thereof are not
satisfied or, after conducting a reasonable investigation of the financial
condition of [Transferee], that the information contained in paragraph 4 thereof
is not true.
Very truly yours,
[Transferor]
EXHIBIT E
FORM OF REQUEST FOR RELEASE
[Date]
▇▇▇▇▇ Fargo Bank, National Association
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Services (CMBS) (GE Commercial Mortgage
Corporation, Commercial Mortgage Pass-Through Certificates, Series 2007-C1)
Re: GE Commercial Mortgage Corporation, Commercial Mortgage Pass-Through
Certificates, Series 2007-C1, REQUEST FOR RELEASE
Dear _______________________,
In connection with the administration of the Mortgage Files held by
or on behalf of you as Trustee under a certain Pooling and Servicing Agreement,
dated as of May 1, 2007 (the "Pooling and Servicing Agreement"), by and among GE
Commercial Mortgage Corporation, as depositor, [the undersigned, as servicer
(the "Servicer"), LNR Partners, Inc., as special servicer (the "Special
Servicer")] [KeyCorp Real Estate Capital Markets, Inc., as a servicer ("Servicer
No. 1"), Bank of America, National Association, as a servicer ("Servicer No.
2"), the undersigned, as special servicer (the "Special Servicer")] and you, as
trustee, 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.
Mortgagor's Name:
Address:
Loan 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 [Servicer No. 1]
[Servicer No. 2] [Special Servicer] hereby certifies
that all amounts received in connection with the
Mortgage Loan have been or will be credited to the
Certificate Account pursuant to the Pooling and
Servicing Agreement.
______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.
[SERVICER NO. 1] [SERVICER NO. 2]
[SPECIAL SERVICER]
By:____________________________________
Name:_______________________________
Title:______________________________
EXHIBIT F
FORM OF ERISA REPRESENTATION LETTER
▇▇▇▇▇ Fargo Bank, National Association
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Services (CMBS) (GE Commercial Mortgage
Corporation, Commercial Mortgage Pass-Through Certificates, Series 2007-C1)
GE Commercial Mortgage Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Legal Department (Real Estate)
Re: Transfer of GE Commercial Mortgage Corporation Commercial Mortgage
Pass-Through Certificates, Series 2007-C1
Ladies and Gentlemen:
The undersigned (the "Purchaser") proposes to purchase $____________
initial Certificate Balance of GE Commercial Mortgage Corporation, Commercial
Mortgage Pass-Through Certificates, Series 2007-C1, Class ___ (the
"Certificate") issued pursuant to that certain Pooling and Servicing Agreement,
dated as of May 1, 2007 (the "Pooling and Servicing Agreement"), by and among GE
Commercial Mortgage Corporation, as depositor (the "Depositor"), KeyCorp Real
Estate Capital Markets, Inc., as a servicer ("Servicer No. 1"), Bank of America,
National Association, as a servicer ("Servicer No. 2", and together with the
Servicer No. 1, the "Servicers"), LNR Partners, Inc., as special servicer (the
"Special Servicer") and ▇▇▇▇▇ Fargo Bank, National Association, as trustee (the
"Trustee"). 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 either of the following:
1. The Purchaser 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 such Plan
and the application of Department of Labor Regulation ss. 2510.3-101), other
(except with respect to the Class R or Class LR Certificates) than 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 Prohibited Transaction Class Exemption 95-60; or
2. Except with respect to the Class R or Class LR Certificates
(which may not be transferred to a Person who is described in paragraph 1(a) or
(b) above), the Purchaser understands that if the Purchaser is a Person referred
to in paragraph 1(a) or (b) above, such Purchaser is required to provide to the
Certificate Registrar an Opinion of Counsel in form and substance satisfactory
to the Certificate Registrar and the Depositor to the effect that the
acquisition and holding of such Certificate by such purchaser or transferee will
not constitute or result in a non-exempt "prohibited transaction" within the
meaning of ERISA, Section 4975 of the Code or any Similar Law, and will not
subject the Trustee, the Certificate Registrar, the Servicers, the Special
Servicer, the [Initial Purchasers] [Underwriters] 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 shall not be at
the expense of the Depositor, the Servicers, the Special Servicers, the Trustee,
the [Initial Purchasers] [Underwriters], 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 G
FORM OF STATEMENT TO CERTIFICATEHOLDERS
--------- ----------------------------------------------
|[▇▇▇▇▇ | | For Additional Information, please contact |
| FARGO | GE Commercial Mortgage Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (▇▇▇) ▇▇▇-▇▇▇▇ |
--------- Series 2007-C1 | Reports Available @ ▇▇▇.▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇ |
▇▇▇▇▇ Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 05/10/2007
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Record Date: 04/30/2007
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Determination Date: 05/04/2007
-----------------------------------------------------------------------------------------------------------------------------------
DISTRIBUTION DATE STATEMENT
Table of Contents
-------------------------------------------------------------------------------
STATEMENT SECTIONS PAGE(s)
------------------ -------
Certificate Distribution Detail 2
Certificate Factor Detail 3
Reconciliation Detail 4
Other Required Information 5
Cash Reconciliation Detail 6
Ratings Detail 7
Current Mortgage Loan and Property Stratification Tables 8 - 16
Mortgage Loan Detail 17
NOI Detail 18
Principal Prepayment Detail 19
Historical Detail 20
Delinquency Loan Detail 21
Specially Serviced Loan Detail 22 - 23
Advance Summary 24
Modified Loan Detail 25
Historical Liquidated Loan Detail 26
Historical Bond / Collateral Realized Loss Reconciliation 27
Interest Shortfall Reconciliation Detail 28 - 29
Defeased Loan Detail 30
Supplemental Reporting 31
-------------------------------------------------------------------------------
Depositor Master Servicer Special Servicer
----------------------------------- ----------------------------------- -----------------------------------
GE Commercial Mortgage Corporation Wachovia Bank, National Association LNR Partners, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ URP 4, NC 1075 ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Contact: General Information Number Contact: Lea Land Contact: General Information Number
Phone Number: (▇▇▇) ▇▇▇-▇▇▇▇ Phone Number: (▇▇▇) ▇▇▇-▇▇▇▇ Phone Number: (▇▇▇) ▇▇▇-▇▇▇▇
----------------------------------- ----------------------------------- -----------------------------------
This report has been compiled from information provided to ▇▇▇▇▇ Fargo Bank, N.A. by various third parties, which may include the
Master Servicer, Special Servicer and others. ▇▇▇▇▇ Fargo Bank, N.A. has not independently confirmed the accuracy of information
received from these third parties and assumes no duty to do so. ▇▇▇▇▇ Fargo Bank, N.A. expressly disclaims any responsibility for
the accuracy or completeness of information furnished by third parties.
------------------------------------------------------------------------------------------------------------------------------------
Copyright, ▇▇▇▇▇ Fargo Bank, N.A. Page 1 of 31
--------- ----------------------------------------------
|[▇▇▇▇▇ | | For Additional Information, please contact |
| FARGO | GE Commercial Mortgage Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (▇▇▇) ▇▇▇-▇▇▇▇ |
--------- Series 2007-C1 | Reports Available @ ▇▇▇.▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇ |
▇▇▇▇▇ Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 05/10/2007
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Record Date: 04/30/2007
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Determination Date: 05/04/2007
-----------------------------------------------------------------------------------------------------------------------------------
Certificate Distribution Detail
-----------------------------------------------------------------------------------------------------------------------------------
Realized Loss / Current
Pass-Through Original Beginning Principal Interest Prepayment Additional Trust Total Ending Subordination
Class CUSIP Rate Balance Balance Distribution Distribution Premium Fund Expenses Distribution Balance Level(1)
-----------------------------------------------------------------------------------------------------------------------------------
A-1 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-2 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-3 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-AB 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-4 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-1-A 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-M 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-J 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
C 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
D 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
E 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
F 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
G 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
H 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
J 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
K 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
L 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
M 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
N 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
O 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
P 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
S 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
R 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
LR 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
-----------------------------------------------------------------------------------------------------------------------------------
Totals 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
-----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
Original Beginning Ending
Pass-Through Notional Notional Interest Prepayment Total Notional
Class CUSIP Rate Amount Amount Distribution Premium Distribution Amount
----------------------------------------------------------------------------------------------
X-W 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00
----------------------------------------------------------------------------------------------
(1) Calculated by taking (A) the sum of the ending certificate balance of all classes less (B) the sum of (i) the ending
balance of the designated class and (ii) the ending certificate balance of all classes which are not subordinate
to the designated class and dividing the result by (A).
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, ▇▇▇▇▇ Fargo Bank, N.A. Page 2 of 31
--------- ----------------------------------------------
|[▇▇▇▇▇ | | For Additional Information, please contact |
| FARGO | GE Commercial Mortgage Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (▇▇▇) ▇▇▇-▇▇▇▇ |
--------- Series 2007-C1 | Reports Available @ ▇▇▇.▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇ |
▇▇▇▇▇ Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 05/10/2007
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Record Date: 04/30/2007
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Determination Date: 05/04/2007
-----------------------------------------------------------------------------------------------------------------------------------
Certificate Factor Detail
--------------------------------------------------------------------------------------------------------------
Realized Loss /
Beginning Principal Interest Prepayment Additional Trust Ending
Class CUSIP Balance Distribution Distribution Premium Fund Expenses Balance
--------------------------------------------------------------------------------------------------------------
A-1 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-2 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-3 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-AB 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-4 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-1-A 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-M 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-J 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
B 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
C 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
D 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
E 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
F 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
G 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
H 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
J 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
K 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
L 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
M 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
N 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
O 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
P 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
S 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
R 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
LR 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
--------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------
Beginning Ending
Notional Interest Prepayment Notional
Class CUSIP Amount Distribution Premium Amount
---------------------------------------------------------------------------
X-W 0.00000000 0.00000000 0.00000000 0.00000000
---------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, ▇▇▇▇▇ Fargo Bank, N.A. Page 3 of 31
--------- ----------------------------------------------
|[▇▇▇▇▇ | | For Additional Information, please contact |
| FARGO | GE Commercial Mortgage Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (▇▇▇) ▇▇▇-▇▇▇▇ |
--------- Series 2007-C1 | Reports Available @ ▇▇▇.▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇ |
▇▇▇▇▇ Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 05/10/2007
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Record Date: 04/30/2007
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Determination Date: 05/04/2007
-----------------------------------------------------------------------------------------------------------------------------------
Reconciliation Detail
Principal Reconciliation
Stated Beginning Principal Unpaid Beginning Scheduled Unscheduled Principal
Loan Group Balance Principal Balance Principal Principal Adjustments
---------- -------------------------- ----------------- --------- ----------- -----------
1 0.00 0.00 0.00 0.00 0.00
2 0.00 0.00 0.00 0.00 0.00
---------- -------------------------- ----------------- --------- ----------- -----------
Total 0.00 0.00 0.00 0.00 0.00
Realized Stated Ending Unpaid Ending Current Principal
Loan Group Loss Principal Balance Principal Balance Distribution Amount
---------- -------- ----------------- ----------------- -------------------
1 0.00 0.00 0.00 0.00
2 0.00 0.00 0.00 0.00
---------- -------- ----------------- ----------------- -------------------
Total 0.00 0.00 0.00 0.00
Certificate Interest Reconciliation
---------------------------------------------------------------------------------------------
Accrued Net Aggregate Distributable Distributable
Accrual Accrual Certificate Prepayment Certificate Certificate Interest
Class Dates Days Interest Interest Shortfall Interest Adjustment
---------------------------------------------------------------------------------------------
A-1 0 0 0.00 0.00 0.00 0.00
A-2 0 0 0.00 0.00 0.00 0.00
A-3 0 0 0.00 0.00 0.00 0.00
A-AB 0 0 0.00 0.00 0.00 0.00
A-4 0 0 0.00 0.00 0.00 0.00
A-1-A 0 0 0.00 0.00 0.00 0.00
A-MFL 0 0 0.00 0.00 0.00 0.00
A-M 0 0 0.00 0.00 0.00 0.00
A-J 0 0 0.00 0.00 0.00 0.00
X-W 0 0 0.00 0.00 0.00 0.00
B 0 0 0.00 0.00 0.00 0.00
C 0 0 0.00 0.00 0.00 0.00
D 0 0 0.00 0.00 0.00 0.00
E 0 0 0.00 0.00 0.00 0.00
F 0 0 0.00 0.00 0.00 0.00
G 0 0 0.00 0.00 0.00 0.00
H 0 0 0.00 0.00 0.00 0.00
J 0 0 0.00 0.00 0.00 0.00
K 0 0 0.00 0.00 0.00 0.00
L 0 0 0.00 0.00 0.00 0.00
M 0 0 0.00 0.00 0.00 0.00
N 0 0 0.00 0.00 0.00 0.00
O 0 0 0.00 0.00 0.00 0.00
P 0 0 0.00 0.00 0.00 0.00
---------------------------------------------------------------------------------------------
Totals 0 0.00 0.00 0.00 0.00
---------------------------------------------------------------------------------------------
Certificate Interest Reconciliation
-----------------------------------------------------------------
Additional Remaining Unpaid
WAC CAP Trust Fund Interest Distributable
Class Shortfall Expenses Distribution Certificate Interest
-----------------------------------------------------------------
A-1 0.00 0.00 0.00 0.00
A-2 0.00 0.00 0.00 0.00
A-3 0.00 0.00 0.00 0.00
A-AB 0.00 0.00 0.00 0.00
A-4 0.00 0.00 0.00 0.00
A-1-A 0.00 0.00 0.00 0.00
A-MFL 0.00 0.00 0.00 0.00
A-M 0.00 0.00 0.00 0.00
A-J 0.00 0.00 0.00 0.00
X-W 0.00 0.00 0.00 0.00
B 0.00 0.00 0.00 0.00
C 0.00 0.00 0.00 0.00
D 0.00 0.00 0.00 0.00
E 0.00 0.00 0.00 0.00
F 0.00 0.00 0.00 0.00
G 0.00 0.00 0.00 0.00
H 0.00 0.00 0.00 0.00
J 0.00 0.00 0.00 0.00
K 0.00 0.00 0.00 0.00
L 0.00 0.00 0.00 0.00
M 0.00 0.00 0.00 0.00
N 0.00 0.00 0.00 0.00
O 0.00 0.00 0.00 0.00
P 0.00 0.00 0.00 0.00
-----------------------------------------------------------------
Totals 0.00 0.00 0.00 0.00
-----------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, ▇▇▇▇▇ Fargo Bank, N.A. Page 4 of 31
--------- ----------------------------------------------
|[▇▇▇▇▇ | | For Additional Information, please contact |
| FARGO | GE Commercial Mortgage Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (▇▇▇) ▇▇▇-▇▇▇▇ |
--------- Series 2007-C1 | Reports Available @ ▇▇▇.▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇ |
▇▇▇▇▇ Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 05/10/2007
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Record Date: 04/30/2007
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Determination Date: 05/04/2007
-----------------------------------------------------------------------------------------------------------------------------------
Other Required Information
--------------------------------------------------------------------------------
Available Distribution Amount (1) 0.00
Master Servicing Fee Summary
Current Period Accrued Master Servicing Fees 0.00
Less Delinquent Master Servicing Fees 0.00
Less Reductions to Master Servicing Fees 0.00
Plus Master Servicing Fees for Delinquent Payments Received 0.00
Plus Adjustments for Prior Master Servicing Calculation 0.00
Total Master Servicing Fees Collected 0.00
(1) The Available Distribution Amount includes any Prepayment Premiums.
Appraisal Reduction Amount
-------------------------------------------------
Appraisal Cumulative Most Recent
Loan Reduction ASER App. Red.
Number Effected Amount Date
-------------------------------------------------
-------------------------------------------------
Total
-------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, ▇▇▇▇▇ Fargo Bank, N.A. Page 5 of 31
--------- ----------------------------------------------
|[▇▇▇▇▇ | | For Additional Information, please contact |
| FARGO | GE Commercial Mortgage Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (▇▇▇) ▇▇▇-▇▇▇▇ |
--------- Series 2007-C1 | Reports Available @ ▇▇▇.▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇ |
▇▇▇▇▇ Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 05/10/2007
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Record Date: 04/30/2007
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Determination Date: 05/04/2007
-----------------------------------------------------------------------------------------------------------------------------------
Cash Reconciliation Detail
---------------------------------------------------------------------------------------------------------------------------------
Total Funds Collected
Interest:
Interest paid or advanced 0.00
Interest reductions due to Non-Recoverability Determinations 0.00
Interest Adjustments 0.00
Deferred Interest 0.00
Net Prepayment Interest Shortfall 0.00
Net Prepayment Interest Excess 0.00
Extension Interest 0.00
Interest Reserve Withdrawal 0.00
--------------
Total Interest Collected 0.00
Principal:
Scheduled Principal 0.00
Unscheduled Principal 0.00
Principal Prepayments 0.00
Collection of Principal after Maturity Date 0.00
Recoveries from Liquidation and Insurance Proceeds 0.00
Excess of Prior Principal Amounts paid 0.00
Curtailments 0.00
Negative Amortization 0.00
Principal Adjustments 0.00
--------------
Total Principal Collected 0.00
Other:
Prepayment Penalties/Yield Maintenance 0.00
Repayment Fees 0.00
Borrower Option Extension Fees 0.00
Equity Payments Received 0.00
Net Swap Counterparty Payments Received 0.00
--------------
Total Other Collected 0.00
--------------
Total Funds Collected 0.00
==============
Total Funds Distributed
Fees:
Master Servicing Fee 0.00
Trustee Fee 0.00
Certificate Administration Fee 0.00
Insurer Fee 0.00
Miscellaneous Fee 0.00
--------------
Total Fees 0.00
Additional Trust Fund Expenses:
Reimbursement for Interest on Advances 0.00
ASER Amount 0.00
Special Servicing Fee 0.00
Rating Agency Expenses 0.00
Attorney Fees & Expenses 0.00
Bankruptcy Expense 0.00
Taxes Imposed on Trust Fund 0.00
Non-Recoverable Advances 0.00
Other Expenses 0.00
--------------
Total Additional Trust Fund Expenses 0.00
Interest Reserve Deposit 0.00
Payments to Certificateholders & Others:
Interest Distribution 0.00
Principal Distribution 0.00
Prepayment Penalties/Yield Maintenance 0.00
Borrower Option Extension Fees 0.00
Equity Payments Paid 0.00
Net Swap Counterparty Payments Paid 0.00
--------------
Total Payments to Certificateholders & Others 0.00
--------------
Total Funds Distributed 0.00
==============
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, ▇▇▇▇▇ Fargo Bank, N.A. Page 6 of 31
--------- ----------------------------------------------
|[▇▇▇▇▇ | | For Additional Information, please contact |
| FARGO | GE Commercial Mortgage Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (▇▇▇) ▇▇▇-▇▇▇▇ |
--------- Series 2007-C1 | Reports Available @ ▇▇▇.▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇ |
▇▇▇▇▇ Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 05/10/2007
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Record Date: 04/30/2007
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Determination Date: 05/04/2007
-----------------------------------------------------------------------------------------------------------------------------------
Ratings Detail
---------------------------------------------------------------------------------------------------------------
Original Ratings Current Ratings (1)
------------------------------------------------------------------------------
Class CUSIP Fitch Moody's DRBS Fitch Moody's DRBS
---------------------------------------------------------------------------------------------------------------
▇-▇
▇-▇
▇-▇
▇-▇▇
▇-▇
▇-▇-▇
A-M
A-J
X-W
B
C
D
E
F
G
H
J
K
L
M
N
O
P
---------------------------------------------------------------------------------------------------------------
NR - Designates that the class was not rated by the above agency at the time of original issuance.
X - Designates that the above rating agency did not rate any classes in this transaction at the time of original issuance.
N/A - Data not available this period.
1) For any class not rated at the time of original issuance by any particular rating agency, no request has been made
subsequent to issuance to obtain rating information, if any, from such rating agency. The current ratings were obtained
directly from the applicable rating agency within 30 days of the payment date listed above. The ratings may have changed since
they were obtained. Because the ratings may have changed, you may want to obtain current ratings directly from the rating
agencies.
Fitch, Inc. ▇▇▇▇▇'▇ Investors Service Dominion Bond Rating Service
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ New York, New York 10007 ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, ▇▇▇▇▇ Fargo Bank, N.A. Page 7 of 31
--------- ----------------------------------------------
|[▇▇▇▇▇ | | For Additional Information, please contact |
| FARGO | GE Commercial Mortgage Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (▇▇▇) ▇▇▇-▇▇▇▇ |
--------- Series 2007-C1 | Reports Available @ ▇▇▇.▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇ |
▇▇▇▇▇ Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 05/10/2007
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Record Date: 04/30/2007
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Determination Date: 05/04/2007
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Aggregate Pool
Scheduled Balance State (3)
---------------------------------------------------------------- ----------------------------------------------------------------
% of % of
Scheduled # of Scheduled Agg. WAM Weighted # of Scheduled Agg. WAM Weighted
Balance loans Balance Bal. (2) WAC Avg DSCR (1) State Props. Balance Bal. (2) WAC Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
See footnotes on last page of this section.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, ▇▇▇▇▇ Fargo Bank, N.A. Page 8 of 31
--------- ----------------------------------------------
|[▇▇▇▇▇ | | For Additional Information, please contact |
| FARGO | GE Commercial Mortgage Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (▇▇▇) ▇▇▇-▇▇▇▇ |
--------- Series 2007-C1 | Reports Available @ ▇▇▇.▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇ |
▇▇▇▇▇ Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 05/10/2007
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Record Date: 04/30/2007
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Determination Date: 05/04/2007
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Aggregate Pool
Debt Service Coverage Ratio Property Type (3)
---------------------------------------------------------------- ----------------------------------------------------------------
Debt Service % of % of
Coverage # of Scheduled Agg. WAM WAC Weighted Property # of Scheduled Agg. WAM WAC Weighted
Ratio loans Balance Bal. (2) Avg DSCR (1) Type Props. Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
Note Rate Seasoning
---------------------------------------------------------------- ----------------------------------------------------------------
% of % of
Note # of Scheduled Agg. WAM WAC Weighted # of Scheduled Agg. WAM WAC Weighted
Rate loans Balance Bal. (2) Avg DSCR (1) Seasoning loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
See footnotes on last page of this section.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, ▇▇▇▇▇ Fargo Bank, N.A. Page 9 of 31
--------- ----------------------------------------------
|[▇▇▇▇▇ | | For Additional Information, please contact |
| FARGO | GE Commercial Mortgage Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (▇▇▇) ▇▇▇-▇▇▇▇ |
--------- Series 2007-C1 | Reports Available @ ▇▇▇.▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇ |
▇▇▇▇▇ Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 05/10/2007
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Record Date: 04/30/2007
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Determination Date: 05/04/2007
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Aggregate Pool
Anticipated Remaining Term (ARD and Balloon Loans) Remaining Stated Term (Fully Amortizing Loans)
---------------------------------------------------------------- ----------------------------------------------------------------
Anticipated % of Remaining % of
Remaining # of Scheduled Agg. WAM WAC Weighted Stated # of Scheduled Agg. WAM WAC Weighted
Term (2) loans Balance Bal. (2) Avg DSCR (1) Term loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
Remaining Amortization Term (ARD and Balloon Loans) Age of Most Recent NOI
---------------------------------------------------------------- ----------------------------------------------------------------
Remaining % of % of
Amortization # of Scheduled Agg. WAM WAC Weighted Age of Most # of Scheduled Agg. WAM WAC Weighted
Term loans Balance Bal. (2) Avg DSCR (1) Recent NOI loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
(1) Debt Service Coverage Ratios are updated periodically as new NOI figures become available from borrowers on an asset level. In
all cases, the most recent DSCR provided by the Servicer is used. To the extent that no DSCR is provided by the Servicer,
information from the offering document is used. The Trustee makes no representations as to the accuracy of the data provided by
the borrower for this calculation.
(2) Anticipated Remaining Term and WAM are each calculated based upon the term from the current month to the earlier of the
Anticipated Repayment Date, if applicable, and the maturity date.
(3) Data in this table was calculated by allocating pro-rata the current loan information to the properties based upon the Cut-off
Date balance of each property as disclosed in the offering document.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, ▇▇▇▇▇ Fargo Bank, N.A. Page 10 of 31
--------- ----------------------------------------------
|[▇▇▇▇▇ | | For Additional Information, please contact |
| FARGO | GE Commercial Mortgage Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (▇▇▇) ▇▇▇-▇▇▇▇ |
--------- Series 2007-C1 | Reports Available @ ▇▇▇.▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇ |
▇▇▇▇▇ Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 05/10/2007
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Record Date: 04/30/2007
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Determination Date: 05/04/2007
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Group I
Scheduled Balance State (3)
---------------------------------------------------------------- ----------------------------------------------------------------
% of % of
Scheduled # of Scheduled Agg. WAM Weighted # of Scheduled Agg. WAM Weighted
Balance loans Balance Bal. (2) WAC Avg DSCR (1) State Props. Balance Bal. (2) WAC Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
See footnotes on last page of this section.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, ▇▇▇▇▇ Fargo Bank, N.A. Page 11 of 31
--------- ----------------------------------------------
|[▇▇▇▇▇ | | For Additional Information, please contact |
| FARGO | GE Commercial Mortgage Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (▇▇▇) ▇▇▇-▇▇▇▇ |
--------- Series 2007-C1 | Reports Available @ ▇▇▇.▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇ |
▇▇▇▇▇ Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 05/10/2007
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Record Date: 04/30/2007
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Determination Date: 05/04/2007
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Group I
Debt Service Coverage Ratio Property Type (3)
---------------------------------------------------------------- ----------------------------------------------------------------
Debt Service % of % of
Coverage # of Scheduled Agg. WAM WAC Weighted Property # of Scheduled Agg. WAM WAC Weighted
Ratio loans Balance Bal. (2) Avg DSCR (1) Type Props. Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
Note Rate Seasoning
---------------------------------------------------------------- ----------------------------------------------------------------
% of % of
Note # of Scheduled Agg. WAM WAC Weighted # of Scheduled Agg. WAM WAC Weighted
Rate loans Balance Bal. (2) Avg DSCR (1) Seasoning loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
See footnotes on last page of this section.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, ▇▇▇▇▇ Fargo Bank, N.A. Page 12 of 31
--------- ----------------------------------------------
|[▇▇▇▇▇ | | For Additional Information, please contact |
| FARGO | GE Commercial Mortgage Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (▇▇▇) ▇▇▇-▇▇▇▇ |
--------- Series 2007-C1 | Reports Available @ ▇▇▇.▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇ |
▇▇▇▇▇ Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 05/10/2007
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Record Date: 04/30/2007
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Determination Date: 05/04/2007
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Group I
Anticipated Remaining Term (ARD and Balloon Loans) Remaining Stated Term (Fully Amortizing Loans)
---------------------------------------------------------------- ----------------------------------------------------------------
Anticipated % of Remaining % of
Remaining # of Scheduled Agg. WAM WAC Weighted Stated # of Scheduled Agg. WAM WAC Weighted
Term (2) loans Balance Bal. (2) Avg DSCR (1) Term loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
Remaining Amortization Term (ARD and Balloon Loans) Age of Most Recent NOI
---------------------------------------------------------------- ----------------------------------------------------------------
Remaining % of % of
Amortization # of Scheduled Agg. WAM WAC Weighted Age of Most # of Scheduled Agg. WAM WAC Weighted
Term loans Balance Bal. (2) Avg DSCR (1) Recent NOI loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
(1) Debt Service Coverage Ratios are updated periodically as new NOI figures become available from borrowers on an asset
level. In all cases, the most recent DSCR provided by the Servicer is used. To the extent that no DSCR is provided by the
Servicer, information from the offering document is used. The Trustee makes no representations as to the accuracy of the
data provided by the borrower for this calculation.
(2) Anticipated Remaining Term and WAM are each calculated based upon the term from the current month to the earlier of
the Anticipated Repayment Date, if applicable, and the maturity date.
(3) Data in this table was calculated by allocating pro-rata the current loan information to the properties based upon
the Cut-off Date balance of each property as disclosed in the offering document.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, ▇▇▇▇▇ Fargo Bank, N.A. Page 13 of 31
--------- ----------------------------------------------
|[▇▇▇▇▇ | | For Additional Information, please contact |
| FARGO | GE Commercial Mortgage Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (▇▇▇) ▇▇▇-▇▇▇▇ |
--------- Series 2007-C1 | Reports Available @ ▇▇▇.▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇ |
▇▇▇▇▇ Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 05/10/2007
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Record Date: 04/30/2007
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Determination Date: 05/04/2007
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Group II
Scheduled Balance State (3)
---------------------------------------------------------------- ----------------------------------------------------------------
% of % of
Scheduled # of Scheduled Agg. WAM Weighted # of Scheduled Agg. WAM Weighted
Balance loans Balance Bal. (2) WAC Avg DSCR (1) State Props. Balance Bal. (2) WAC Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
See footnotes on last page of this section.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, ▇▇▇▇▇ Fargo Bank, N.A. Page 14 of 31
--------- ----------------------------------------------
|[▇▇▇▇▇ | | For Additional Information, please contact |
| FARGO | GE Commercial Mortgage Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (▇▇▇) ▇▇▇-▇▇▇▇ |
--------- Series 2007-C1 | Reports Available @ ▇▇▇.▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇ |
▇▇▇▇▇ Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 05/10/2007
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Record Date: 04/30/2007
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Determination Date: 05/04/2007
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Group II
Debt Service Coverage Ratio Property Type (3)
---------------------------------------------------------------- ----------------------------------------------------------------
Debt Service % of % of
Coverage # of Scheduled Agg. WAM WAC Weighted Property # of Scheduled Agg. WAM WAC Weighted
Ratio loans Balance Bal. (2) Avg DSCR (1) Type Props. Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
Note Rate Seasoning
---------------------------------------------------------------- ----------------------------------------------------------------
% of % of
Note # of Scheduled Agg. WAM WAC Weighted # of Scheduled Agg. WAM WAC Weighted
Rate loans Balance Bal. (2) Avg DSCR (1) Seasoning loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
See footnotes on last page of this section.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, ▇▇▇▇▇ Fargo Bank, N.A. Page 15 of 31
--------- ----------------------------------------------
|[▇▇▇▇▇ | | For Additional Information, please contact |
| FARGO | GE Commercial Mortgage Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (▇▇▇) ▇▇▇-▇▇▇▇ |
--------- Series 2007-C1 | Reports Available @ ▇▇▇.▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇ |
▇▇▇▇▇ Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 05/10/2007
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Record Date: 04/30/2007
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Determination Date: 05/04/2007
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Group II
Anticipated Remaining Term (ARD and Balloon Loans) Remaining Stated Term (Fully Amortizing Loans)
---------------------------------------------------------------- ----------------------------------------------------------------
Anticipated % of Remaining % of
Remaining # of Scheduled Agg. WAM WAC Weighted Stated # of Scheduled Agg. WAM WAC Weighted
Term (2) loans Balance Bal. (2) Avg DSCR (1) Term loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
Remaining Amortization Term (ARD and Balloon Loans) Age of Most Recent NOI
---------------------------------------------------------------- ----------------------------------------------------------------
Remaining % of % of
Amortization # of Scheduled Agg. WAM WAC Weighted Age of Most # of Scheduled Agg. WAM WAC Weighted
Term loans Balance Bal. (2) Avg DSCR (1) Recent NOI loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
(1) Debt Service Coverage Ratios are updated periodically as new NOI figures become available from borrowers on an asset
level. In all cases, the most recent DSCR provided by the Servicer is used. To the extent that no DSCR is provided by the
Servicer, information from the offering document is used. The Trustee makes no representations as to the accuracy of the
data provided by for this calculation.
(2) Anticipated Remaining Term and WAM are each calculated based upon the term from the current month to the earlier of the
Anticipated Repayment Date, if applicable, and the maturity date.
(3) Data in this table was calculated by allocating pro-rata the current loan information to the properties based upon the
Cut-off Date balance of each property as disclosed in the offering document.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, ▇▇▇▇▇ Fargo Bank, N.A. Page 16 of 31
--------- ----------------------------------------------
|[▇▇▇▇▇ | | For Additional Information, please contact |
| FARGO | GE Commercial Mortgage Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (▇▇▇) ▇▇▇-▇▇▇▇ |
--------- Series 2007-C1 | Reports Available @ ▇▇▇.▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇ |
▇▇▇▇▇ Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 05/10/2007
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Record Date: 04/30/2007
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Determination Date: 05/04/2007
-----------------------------------------------------------------------------------------------------------------------------------
Mortgage Loan Detail
---------------------------------------------------------------------------------------------------------------------------
Anticipated Neg. Beginning Ending Paid
Loan Property Interest Principal Gross Repayment Maturity Amort Scheduled Scheduled Thru
Number ODCR Type (1) City State Payment Payment Coupon Date Date (Y/N) Balance Balance Date
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
Totals
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------
Appraisal Appraisal Res. Mod.
Loan Reduction Reduction Strat. Code
Number Date Amount (2) (3)
---------------------------------------------
---------------------------------------------
Totals
---------------------------------------------
--------------------------------------------------------------------------------
(1) Property Type Code
----------------------
MF - Multi-Family OF - Office
RT - Retail MU - Mixed Use
HC - Health Care LO - Lodging
IN - Industrial SS - Self Storage
WH - Warehouse OT - Other
MH - Mobile Home Park
(2) Resolution Strategy Code
----------------------------
1 - Modification 6 - DPO 10 - Deed in Lieu Of
2 - Foreclosure 7 - REO Foreclosure
3 - Bankruptcy 8 - Resolved 11 - Full Payoff
4 - Extension 9 - Pending Return 12 - Reps and Warranties
5 - Note Sale to Master Servicer 13 - Other or TBD
(3) Modification Code
---------------------
1 - Maturity Date Extension
2 - Amortization Change
3 - Principal Write-Off
4 - Combination
--------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, ▇▇▇▇▇ Fargo Bank, N.A. Page 17 of 31
--------- ----------------------------------------------
|[▇▇▇▇▇ | | For Additional Information, please contact |
| FARGO | GE Commercial Mortgage Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (▇▇▇) ▇▇▇-▇▇▇▇ |
--------- Series 2007-C1 | Reports Available @ ▇▇▇.▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇ |
▇▇▇▇▇ Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 05/10/2007
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Record Date: 04/30/2007
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Determination Date: 05/04/2007
-----------------------------------------------------------------------------------------------------------------------------------
NOI Detail
-----------------------------------------------------------------------------------------------------------------------------------
Ending Most Most Most Recent Most Recent
Loan Property Scheduled Recent Recent NOI Start NOI End
Number ODCR Type City State Balance Fiscal NOI NOI Date Date
-----------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Totals
------------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, ▇▇▇▇▇ Fargo Bank, N.A. Page 18 of 31
--------- ----------------------------------------------
|[▇▇▇▇▇ | | For Additional Information, please contact |
| FARGO | GE Commercial Mortgage Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (▇▇▇) ▇▇▇-▇▇▇▇ |
--------- Series 2007-C1 | Reports Available @ ▇▇▇.▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇ |
▇▇▇▇▇ Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 05/10/2007
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Record Date: 04/30/2007
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Determination Date: 05/04/2007
-----------------------------------------------------------------------------------------------------------------------------------
Principal Prepayment Detail
--------------------------------------------------------------------------------------------------------
Principal Prepayment Amount
Offering Document --------------------------------------
Loan Number Loan Group Cross-Reference Payoff Amount Curtailment Amount
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
Totals
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------
Prepayment Penalties
--------------------------------------------------
Loan Number Prepayment Premium Yield Maintenance Premium
--------------------------------------------------------------------
--------------------------------------------------------------------
Totals
--------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, ▇▇▇▇▇ Fargo Bank, N.A. Page 19 of 31
--------- ----------------------------------------------
|[▇▇▇▇▇ | | For Additional Information, please contact |
| FARGO | GE Commercial Mortgage Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (▇▇▇) ▇▇▇-▇▇▇▇ |
--------- Series 2007-C1 | Reports Available @ ▇▇▇.▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇ |
▇▇▇▇▇ Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 05/10/2007
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Record Date: 04/30/2007
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Determination Date: 05/04/2007
-----------------------------------------------------------------------------------------------------------------------------------
Historical Detail
------------------------------------------------------------------------------------------------------------------------------------
Delinquencies
-------------------------------------------------------------------------------------------------
Distribution 30-59 Days 60-89 Days 90 Days or More Foreclosure REO Modifications
Date # Balance # Balance # Balance # Balance # Balance # Balance
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
Prepayments Rate and Maturities
--------------------------------------------------------------------------------------
Distribution Curtailments Payoff Next Weighted Avg.
Date # Balance # Balance Coupon Remit WAM
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
Note: Foreclosure and REO Totals are excluded from the delinquencies.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, ▇▇▇▇▇ Fargo Bank, N.A. Page 20 of 31
--------- ----------------------------------------------
|[▇▇▇▇▇ | | For Additional Information, please contact |
| FARGO | GE Commercial Mortgage Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (▇▇▇) ▇▇▇-▇▇▇▇ |
--------- Series 2007-C1 | Reports Available @ ▇▇▇.▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇ |
▇▇▇▇▇ Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 05/10/2007
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Record Date: 04/30/2007
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Determination Date: 05/04/2007
-----------------------------------------------------------------------------------------------------------------------------------
Delinquency Loan Detail
-----------------------------------------------------------------------------------------------------------------------------------
Offering # of Current Outstanding Status of Resolution
Document Months Paid Through P & I P & I Mortgage Strategy Servicing Foreclosure
Loan Number Cross-Reference Delinq. Date Advances Advances ** Loan (1) Code (2) Transfer Date Date
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Totals
-----------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------
Actual Outstanding
Principal Servicing Bankruptcy REO
Loan Number Balance Advances Date Date
--------------------------------------------------------------
--------------------------------------------------------------
Totals
--------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
(1) Status of Mortgage Loan
---------------------------
A - Payment Not Received 0 - Current 4 - Assumed Scheduled Payment
But Still in Grace Period 1 - One Month Delinquent (Performing Matured Loan)
B - Late Payment But Less 2 - Two Months Delinquent 7 - Foreclosure
Than 1 Month Delinquent 3 - Three or More Months Delinquent 9 - REO
(2) Resolution Strategy Code
----------------------------
1 - Modification 6 - DPO 10 - Deed In Lieu Of
2 - Foreclosure 7 - REO Foreclosure
3 - Bankruptcy 8 - Resolved 11 - Full Payoff
4 - Extension 9 - Pending Return 12 - Reps and Warranties
5 - Note Sale to Master Servicer 13 - Other or TBD
-------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, ▇▇▇▇▇ Fargo Bank, N.A. Page 21 of 31
--------- ----------------------------------------------
|[▇▇▇▇▇ | | For Additional Information, please contact |
| FARGO | GE Commercial Mortgage Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (▇▇▇) ▇▇▇-▇▇▇▇ |
--------- Series 2007-C1 | Reports Available @ ▇▇▇.▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇ |
▇▇▇▇▇ Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 05/10/2007
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Record Date: 04/30/2007
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Determination Date: 05/04/2007
-----------------------------------------------------------------------------------------------------------------------------------
Specially Serviced Loan Detail - Part 1
---------------------------------------------------------------------------------------------------------------------
Offering Servicing Resolution
Distribution Loan Document Transfer Strategy Scheduled Property Interest Actual
Date Number Cross-Reference Date Code (1) Balance Type (2) State Rate Balance
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------
Net Remaining
Distribution Operating NOI Note Maturity Amortization
Date Income Date DSCR Date Date Term
----------------------------------------------------------------------------
----------------------------------------------------------------------------
(1) Resolution Strategy Code
----------------------------
1 - Modification 6 - DPO 10 - Deed in Lieu Of
2 - Foreclosure 7 - REO Foreclosure
3 - Bankruptcy 8 - Resolved 11 - Full Payoff
4 - Extension 9 - Pending Return 12 - Reps and Warranties
5 - Note Sale to Master Servicer 13 - Other or TBD
(2) Property Type Code
----------------------
MF - Multi-Family OF - Office
RT - Retail MU - Mixed Use
HC - Health Care LO - Lodging
IN - Industrial SS - Self Storage
WH - Warehouse OT - Other
MH - Mobile Home Park
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, ▇▇▇▇▇ Fargo Bank, N.A. Page 22 of 31
--------- ----------------------------------------------
|[▇▇▇▇▇ | | For Additional Information, please contact |
| FARGO | GE Commercial Mortgage Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (▇▇▇) ▇▇▇-▇▇▇▇ |
--------- Series 2007-C1 | Reports Available @ ▇▇▇.▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇ |
▇▇▇▇▇ Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 05/10/2007
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Record Date: 04/30/2007
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Determination Date: 05/04/2007
-----------------------------------------------------------------------------------------------------------------------------------
Specially Serviced Loan Detail - Part 2
------------------------------------------------------------------------------------------------------------------------------------
Offering Resolution Site
Distribution Loan Document Strategy Inspection Appraisal Appraisal Other REO
Date Number Cross-Reference Code (1) Date Phase 1 Date Date Value Property Revenue Comment
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
(1) Resolution Strategy Code
----------------------------
1 - Modification 6 - DPO 10 - Deed in Lieu Of
2 - Foreclosure 7 - REO Foreclosure
3 - Bankruptcy 8 - Resolved 11 - Full Payoff
4 - Extension 9 - Pending Return 12 - Reps and Warranties
5 - Note Sale to Master Servicer 13 - Other or TBD
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, ▇▇▇▇▇ Fargo Bank, N.A. Page 23 of 31
--------- ----------------------------------------------
|[▇▇▇▇▇ | | For Additional Information, please contact |
| FARGO | GE Commercial Mortgage Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (▇▇▇) ▇▇▇-▇▇▇▇ |
--------- Series 2007-C1 | Reports Available @ ▇▇▇.▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇ |
▇▇▇▇▇ Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 05/10/2007
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Record Date: 04/30/2007
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Determination Date: 05/04/2007
-----------------------------------------------------------------------------------------------------------------------------------
Advance Summary
Current Period Interest
Current P&I Outstanding P&I Outstanding Servicing on P&I and Servicing
Loan Group Advances Advances Advances Advances Paid
---------- ----------- --------------- --------------------- -----------------------
1 0.00 0.00 0.00 0.00
2 0.00 0.00 0.00 0.00
---------- ----------- --------------- --------------------- -----------------------
Totals 0.00 0.00 0.00 0.00
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, ▇▇▇▇▇ Fargo Bank, N.A. Page 24 of 31
--------- ----------------------------------------------
|[▇▇▇▇▇ | | For Additional Information, please contact |
| FARGO | GE Commercial Mortgage Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (▇▇▇) ▇▇▇-▇▇▇▇ |
--------- Series 2007-C1 | Reports Available @ ▇▇▇.▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇ |
▇▇▇▇▇ Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 05/10/2007
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Record Date: 04/30/2007
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Determination Date: 05/04/2007
-----------------------------------------------------------------------------------------------------------------------------------
Modified Loan Detail
-----------------------------------------------------------------------------------------------------------------------------------
Offering
Loan Document Pre-Modification Post-Modification Pre-Modification Post-Modification Modification Modification
Number Cross-Reference Balance Balance Interest Rate Interest Rate Date Description
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Totals
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, ▇▇▇▇▇ Fargo Bank, N.A. Page 25 of 31
--------- ----------------------------------------------
|[▇▇▇▇▇ | | For Additional Information, please contact |
| FARGO | GE Commercial Mortgage Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (▇▇▇) ▇▇▇-▇▇▇▇ |
--------- Series 2007-C1 | Reports Available @ ▇▇▇.▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇ |
▇▇▇▇▇ Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 05/10/2007
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Record Date: 04/30/2007
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Determination Date: 05/04/2007
-----------------------------------------------------------------------------------------------------------------------------------
Historical Liquidated Loan Detail
-------------------------------------------------------------------------------------------------------------------------
Beginning Fees, Most Recent Gross Sales Net Proceeds
Distribution Scheduled Advances, Appraised Proceeds or Received on
Date ODCR Balance and Expenses* Value or BPO Other Proceeds Liquidation
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
Current Total
-------------------------------------------------------------------------------------------------------------------------
Cumulative Total
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
Net Proceeds Date of Current Current Period Cumulative Loss to Loan
Distribution Available for Realized Period Adj. Adjustment Adjustment with Cum
Date Distribution Loss to Trust to Trust to Trust to Trust Adj. to Trust
---------------------------------------------------------------- --------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
Current Total
---------------------------------------------------------------------------------------------------------------------------------
Cumulative Total
---------------------------------------------------------------------------------------------------------------------------------
* Fees, Advances and Expenses also include outstanding P & I advances and unpaid fees (servicing, trustee, etc.).
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, ▇▇▇▇▇ Fargo Bank, N.A. Page 26 of 31
--------- ----------------------------------------------
|[▇▇▇▇▇ | | For Additional Information, please contact |
| FARGO | GE Commercial Mortgage Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (▇▇▇) ▇▇▇-▇▇▇▇ |
--------- Series 2007-C1 | Reports Available @ ▇▇▇.▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇ |
▇▇▇▇▇ Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 05/10/2007
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Record Date: 04/30/2007
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Determination Date: 05/04/2007
-----------------------------------------------------------------------------------------------------------------------------------
Historical Bond/Collateral Loss Reconciliation Detail
Offering Beginning Aggregate Prior Realized Amounts Interest Modification
Distribution Document Balance Realized Loss Loss Applied Covered By (Shortages)/ /Appraisal
Date Cross-Reference at Liquidation on Loans to Certificates Credit Support Excesses Reduction Adj.
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Totals
------------------------------------------------------------------------------------------------------------------------------------
Additional Realized Loss Recoveries of (Recoveries)/
Distribution (Recoveries) Applied to Realized Losses Losses Applied to
Date /Expenses Certificates to Date Paid as Cash Certificate Interest
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
Totals
-------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Copyright, ▇▇▇▇▇ Fargo Bank, N.A. Page 27 of 31
--------- ----------------------------------------------
|[▇▇▇▇▇ | | For Additional Information, please contact |
| FARGO | GE Commercial Mortgage Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (▇▇▇) ▇▇▇-▇▇▇▇ |
--------- Series 2007-C1 | Reports Available @ ▇▇▇.▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇ |
▇▇▇▇▇ Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 05/10/2007
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Record Date: 04/30/2007
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Determination Date: 05/04/2007
-----------------------------------------------------------------------------------------------------------------------------------
Interest Shortfall Reconciliation Detail - Part 1
Offering Stated Principal Current Ending Special Servicing Fees Non-Recoverable
Document Balance at Scheduled -------------------------------- (Scheduled
Cross-Reference Contribution Balance Monthly Liquidation Work Out ASER (PPIS) Excess Interest)
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
Totals
----------------------------------------------------------------------------------------------------------------------------------
Offering Modified Interest Additional
Document Interest on Rate (Reduction) Trust Fund
Cross-Reference Advances /Excess Expense
--------------------------------------------------------------
--------------------------------------------------------------
Totals
--------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Copyright, ▇▇▇▇▇ Fargo Bank, N.A. Page 28 of 31
--------- ----------------------------------------------
|[▇▇▇▇▇ | | For Additional Information, please contact |
| FARGO | GE Commercial Mortgage Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (▇▇▇) ▇▇▇-▇▇▇▇ |
--------- Series 2007-C1 | Reports Available @ ▇▇▇.▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇ |
▇▇▇▇▇ Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 05/10/2007
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Record Date: 04/30/2007
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Determination Date: 05/04/2007
-----------------------------------------------------------------------------------------------------------------------------------
Interest Shortfall Reconciliation Detail - Part 2
Reimb of Advances to the Servicer
Offering Stated Principal Current Ending ---------------------------------
Document Balance at Scheduled Left to Reimburse Other (Shortfalls)/
Cross-Reference Contribution Balance Current Month Master Servicer Refunds Comments
------------------------------------------------------------------------------------------------------------------------
Totals
------------------------------------------------------------------------------------------------------------------------
Interest Shortfall Reconciliation Detail Part 2 Total 0.00
------------------------------------------------------------------------------------------------------------------------
Interest Shortfall Reconciliation Detail Part 1 Total 0.00
------------------------------------------------------------------------------------------------------------------------
Total Interest Shortfall Allocated to Trust 0.00
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Copyright, ▇▇▇▇▇ Fargo Bank, N.A. Page 29 of 31
--------- ----------------------------------------------
|[▇▇▇▇▇ | | For Additional Information, please contact |
| FARGO | GE Commercial Mortgage Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (▇▇▇) ▇▇▇-▇▇▇▇ |
--------- Series 2007-C1 | Reports Available @ ▇▇▇.▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇ |
▇▇▇▇▇ Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 05/10/2007
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Record Date: 04/30/2007
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Determination Date: 05/04/2007
-----------------------------------------------------------------------------------------------------------------------------------
Defeased Loan Detail
-----------------------------------------------------------------------------------------------------------------------------------
Offering Document Ending Scheduled
Loan Number Cross-Reference Balance Maturity Date Note Rate Defeasance Status
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Totals
-----------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Copyright, ▇▇▇▇▇ Fargo Bank, N.A. Page 30 of 31
--------- ----------------------------------------------
|[▇▇▇▇▇ | | For Additional Information, please contact |
| FARGO | GE Commercial Mortgage Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (▇▇▇) ▇▇▇-▇▇▇▇ |
--------- Series 2007-C1 | Reports Available @ ▇▇▇.▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇ |
▇▇▇▇▇ Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services Payment Date: 05/10/2007
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Record Date: 04/30/2007
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Determination Date: 05/04/2007
-----------------------------------------------------------------------------------------------------------------------------------
Supplemental Reporting
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Copyright, ▇▇▇▇▇ Fargo Bank, N.A. Page 31 of 31
EXHIBIT H
FORM OF OMNIBUS ASSIGNMENT
[NAME OF CURRENT ASSIGNOR] having an address at [ADDRESS OF CURRENT
ASSIGNOR] (the "Assignor") for good and valuable consideration, the receipt and
sufficiency of which are acknowledged, hereby sells, transfers, assigns,
delivers, sets over and conveys, without recourse, representation or warranty,
express or implied, unto "[_______________], as trustee for the registered
holders of GE Commercial Mortgage Corporation, Commercial Mortgage Pass-Through
Certificates, Series 2007-C1" (the "Assignee"), having an office at
[_______________], Attn: Corporate Trust Administrator/GE Commercial Mortgage
Corporation, Series 2007-C1, its successors and assigns, all right, title and
interest of the Assignor in and to:
That certain mortgage and security agreement, deed of trust and security
agreement, deed to secure debt and security agreement, or similar security
instrument (the "Security Instrument"), and that certain Promissory Note (the
"Note"), for each of the Mortgage Loans shown on the Mortgage Loan Schedule
attached hereto as Exhibit A, and that certain assignment of leases and rents
given in connection therewith and all of the Assignor's right, title and
interest in any claims, collateral, insurance policies, certificates of deposit,
letters of credit, escrow accounts, performance bonds, demands, causes of action
and any other collateral arising out of and/or executed and/or delivered in or
to or with respect to the Security Instrument and the Note, together with any
other documents or instruments executed and/or delivered in connection with or
otherwise related to the Security Instrument and the Note.
IN WITNESS WHEREOF, the Assignor has executed this instrument under
seal to be effective as of the [__] day of [____________], 20[__].
[NAME OF CURRENT ASSIGNOR]
By:____________________________
Name:
Title:
EXHIBIT I
[RESERVED]
EXHIBIT J-1
FORM OF CONFIDENTIALITY AGREEMENT
[Date]
[KeyCorp Real Estate Capital Markets, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇]
[Bank of America, National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ , ▇▇▇▇▇ ▇▇▇
NC1-026-06-01
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇]
Re: Information regarding GE Commercial Mortgage Corporation, Commercial
Mortgage Pass-Through Certificates, Series 2007-C1
Ladies and Gentlemen:
In connection with the GE Commercial Mortgage Corporation,
Commercial Mortgage Pass-Through Certificates, Series 2007-C1 (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 ▇▇▇▇▇ Fargo Bank, National
Association, as trustee (the "Trustee"), GE Commercial Mortgage Corporation, 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 nonconfidential 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 nonconfidential 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
May 1, 2007, by and among the Depositor, the Trustee, KeyCorp Real Estate
Capital Markets, Inc., as a Servicer (the "Servicer No. 1"), Bank of America,
National Association, as a Servicer (the "Servicer No. 2", and together with the
Servicer No. 1, the "Servicers") and LNR Partners, Inc., as Special Servicer
(the "Special Servicer").
The undersigned shall be fully liable for any breach of this
agreement by itself or any of its Representatives and shall indemnify the
Depositor, the Servicers, 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 J-2
FORM OF INFORMATION REQUEST FROM
CERTIFICATEHOLDER OR CERTIFICATE OWNER
[Date]
[KeyCorp Real Estate Capital Markets, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇]
[Bank of America, National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ , ▇▇▇▇▇ ▇▇▇
NC1-026-06-01
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇]
Re: Information regarding GE Commercial Mortgage Corporation, Commercial
Mortgage Pass-Through Certificates, Series 2007-C1
In accordance with the Pooling and Servicing Agreement, dated as of May 1,
2007 (the "Pooling and Servicing Agreement"), by and among GE Commercial
Mortgage Corporation, as depositor (the "Depositor"), KeyCorp Real Estate
Capital Markets, Inc., as a servicer ("Servicer No. 1"), Bank of America,
National Association, as a servicer ("Servicer No. 2"), LNR Partners, Inc., as
special servicer, and ▇▇▇▇▇ Fargo Bank, National Association, as trustee (the
"Trustee"), with respect to the GE Commercial Mortgage Corporation, Commercial
Mortgage Pass-Through Certificates, Series 2007-C1 (the "Certificates"), the
undersigned ("Investor") hereby certifies and agrees as follows:
1. Investor is a [holder] [beneficial owner] of [$__________ aggregate
[Certificate Balance/Certificate Notional Amount] of] [a ___%
Percentage Interest in] the Class ____ Certificates.
2. Investor is requesting access to the following information (the
"Information") solely for use in evaluating Investor's investment in
the Certificates:
___ The information available on the [Servicer No.1's]
[Servicer No.2's] Website pursuant to Section 3.12 of
the Pooling and Servicing Agreement.
___ The information available on the Trustee's Website
pursuant to Section 4.02 of the Pooling and Servicing
Agreement.
___ The information identified on Schedule I attached hereto
pursuant to Sections 3.12 and 4.02 of the Pooling and
Servicing Agreement.
3. In consideration of the [Servicer No.1's [Servicer No.2's] or the
Trustee's disclosure to Investor of the Information, Investor will
keep the Information confidential (except from such outside Persons
as are assisting it in evaluating the Information), and such
Information will not, without the prior written consent of the
[Servicer No.1][Servicer No.2] or the Trustee, as applicable, be
disclosed by Investor or by its affiliates, officers, directors,
partners, shareholders, members, managers, employees, agents or
representatives (collectively, the "Representatives") in any manner
whatsoever, in whole or in part; provided, that Investor may provide
all or any part of the Information to any other Person that holds or
is contemplating the purchase of any Certificate or interest
therein, but only if such Person confirms in writing such ownership
interest or prospective ownership interest and agrees to keep it
confidential; and provided further, that Investor may provide all or
any part of the Information to its auditors, legal counsel and
regulators.
4. Investor will not use or disclose the Information in any manner that
could result in a violation of any provision of the Securities Act
of 1933, as amended (the "Securities Act"), or the Securities
Exchange Act of 1934, as amended, or that would require registration
of any Non-Registered Certificate pursuant to Section 5 of the
Securities Act.
5. Investor hereby acknowledges and agrees that:
(a) Neither the [Servicer No.1][Servicer No.2] nor the Trustee
will make any representations or warranties as to the accuracy
or completeness of, and will assume no responsibility for, any
report, document or other information delivered pursuant to
this request or made available on its respective Website;
(b) Neither the [Servicer No.1][Servicer No.2] nor the Trustee has
undertaken any obligation to verify the accuracy or
completeness of any information provided by a Mortgagor, a
third party, each other or any other Person that is included
in any report, document or other information delivered
pursuant to this request or made available on its respective
Website;
(c) Any transmittal of any report, document or other information
to Investor by the [Servicer No.1][Servicer No.2] or the
Trustee is subject to, which transmittal may (but need not be)
accompanied by a letter containing, the following provision:
By receiving the information set forth herein, you
hereby acknowledge and agree that the United States
securities laws restrict any person who possesses
material, non-public information regarding the Trust
which issued GE Commercial Mortgage Corporation,
Commercial Mortgage Pass-Through Certificates, Series
2007-C1, from purchasing or selling such Certificates in
circumstances where the other party to the transaction
is not also in possession of such information. You also
acknowledge and agree that such information is being
provided to you for the purposes of, and such
information may be used only in connection with,
evaluation by you or another Certificateholder,
Certificate Owner or prospective purchaser of such
Certificates or beneficial interest therein; and
(d) When delivering any report, document or other information
pursuant to this request, the [Servicer No.1][Servicer No.2]
or the Trustee may (i) indicate the source thereof and may
affix thereto any disclaimer it deems appropriate in its
discretion and (ii) contemporaneously provide such report,
document or information to the Depositor, the Trustee, any
Underwriter, any Rating Agency or Certificateholders or
Certificate Owners.
6. Investor agrees to indemnify and hold harmless the [Servicer
No.1][Servicer No.2], the Trustee, the Trust and the Depositor from
any damage, loss, cost or liability (including legal fees and
expenses and the cost of enforcing this indemnity) arising out of or
resulting from any unauthorized use or disclosure of the Information
by Investor or any of its Representatives. Investor also
acknowledges and agrees that money damages would be both
incalculable and an insufficient remedy for any breach of the terms
of this letter by Investor or any of its Representatives and that
the [Servicer No.1][Servicer No.2], the Trustee, or the Trust may
seek equitable relief, including injunction and specific
performance, as a remedy for any such breach. Such remedies are not
the exclusive remedies for a breach of this letter but are in
addition to all other remedies available at law or equity.
Capitalized terms used in this letter but not defined have the respective
meanings given to them in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, Investor has caused its name to be signed hereto by
its duly authorized officer, as of the day and year written above.
[CERTIFICATEHOLDER] [BENEFICIAL OWNER OF A
CERTIFICATE]
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Telephone No.:
------------------------------
SCHEDULE I
[Information Requested]
EXHIBIT J-3
FORM OF INFORMATION REQUEST FROM PROSPECTIVE INVESTOR
[Date]
[KeyCorp Real Estate Capital Markets, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇]
[Bank of America, National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ , ▇▇▇▇▇ ▇▇▇
NC1-026-06-01
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇]
Re: Information regarding GE Commercial Mortgage Corporation, Commercial
Mortgage Pass-Through Certificates, Series 2007-C1
In accordance with the Pooling and Servicing Agreement, dated as of May 1,
2007 (the "Pooling and Servicing Agreement"), by and among GE Commercial
Mortgage Corporation, as depositor (the "Depositor"), KeyCorp Real Estate
Capital Markets, Inc., as a servicer ("Servicer No. 1"), Bank of America,
National Association, as a servicer ("Servicer No. 2"), LNR Partners, Inc., as
special servicer, and ▇▇▇▇▇ Fargo Bank, National Association, as trustee (the
"Trustee"), with respect to the GE Commercial Mortgage Corporation, Commercial
Mortgage Pass-Through Certificates, Series 2007-C1 (the "Certificates"), the
undersigned ("Investor") hereby certifies and agrees as follows:
1. Investor is contemplating an investment in the Class ____
Certificates.
2. Investor is requesting access to the following information (the
"Information") solely for use in evaluating such possible
investment:
___ The information available on the [Servicer No.1's][Servicer
No.2's] Website pursuant to Section 3.12 of the Pooling and
Servicing Agreement.
___ The information available on the Trustee's Website pursuant to
Section 4.02 of the Pooling and Servicing Agreement.
___ The information identified on Schedule I attached hereto
pursuant to Sections 3.12 and 4.02 of the Pooling and
Servicing Agreement.
3. In consideration of the [Servicer No.1's][Servicer No.2's] or the
Trustee's disclosure to Investor of the Information, Investor will
keep the Information confidential (except from such outside Persons
as are assisting it in making the investment decision described in
paragraph 1), and such Information will not, without the prior
written consent of the [Servicer No.1][Servicer No.2] or the
Trustee, as applicable, be disclosed by Investor or by its
affiliates, officers, directors, partners, shareholders, members,
managers, employees, agents or representatives (collectively, the
"Representatives") in any manner whatsoever, in whole or in part;
provided, that Investor may provide all or any part of the
Information to any other Person that holds or is contemplating the
purchase of any Certificate or interest therein, but only if such
Person confirms in writing such ownership interest or prospective
ownership interest and agrees to keep it confidential; and provided
further, that Investor may provide all or any part of the
Information to its auditors, legal counsel and regulators.
4. Investor will not use or disclose the Information in any manner that
could result in a violation of any provision of the Securities Act
of 1933, as amended (the "Securities Act"), or the Securities
Exchange Act of 1934, as amended, or that would require registration
of any Non-Registered Certificate pursuant to Section 5 of the
Securities Act.
5. Investor hereby acknowledges and agrees that:
(a) Neither the [Servicer No.1][Servicer No.2] nor the Trustee
will make any representations or warranties as to the accuracy
or completeness of, and will assume no responsibility for, any
report, document or other information delivered pursuant to
this request or made available on its respective Website;
(b) Neither the [Servicer No.1][Servicer No.2] nor the Trustee has
undertaken any obligation to verify the accuracy or
completeness of any information provided by a Mortgagor, a
third party, each other or any other Person that is included
in any report, document or other information delivered
pursuant to this request or made available on its respective
Website;
(c) Any transmittal of any report, document or other information
to Investor by the [Servicer No.1][Servicer No.2] or the
Trustee is subject to, which transmittal may (but need not be)
accompanied by a letter containing, the following provision:
By receiving the information set forth herein, you
hereby acknowledge and agree that the United States
securities laws restrict any person who possesses
material, non-public information regarding the Trust
which issued GE Commercial Mortgage Corporation,
Commercial Mortgage Pass-Through Certificates, Series
2007-C1, from purchasing or selling such Certificates in
circumstances where the other party to the transaction
is not also in possession of such information. You also
acknowledge and agree that such information is being
provided to you for the purposes of, and such
information may be used only in connection with,
evaluation by you or another Certificateholder,
Certificate Owner or prospective purchaser of such
Certificates or beneficial interest therein; and
(d) When delivering any report, document or other information pursuant
to this request, the [Servicer No.1][Servicer No.2] or the Trustee
may (i) indicate the source thereof and may affix thereto any
disclaimer it deems appropriate in its discretion and (ii)
contemporaneously provide such report, document or information to
the Depositor, the Trustee, any Underwriter, any Rating Agency or
Certificateholders or Certificate Owners.
6. Investor agrees to indemnify and hold harmless the [Servicer
No.1][Servicer No.2], the Trustee, the Trust and the Depositor from
any damage, loss, cost or liability (including legal fees and
expenses and the cost of enforcing this indemnity) arising out of or
resulting from any unauthorized use or disclosure of the Information
by Investor or any of its Representatives. Investor also
acknowledges and agrees that money damages would be both
incalculable and an insufficient remedy for any breach of the terms
of this letter by Investor or any of its Representatives and that
the [Servicer No.1][Servicer No.2], the Trustee or the Trust may
seek equitable relief, including injunction and specific
performance, as a remedy for any such breach. Such remedies are not
the exclusive remedies for a breach of this letter but are in
addition to all other remedies available at law or equity.
Capitalized terms used in this letter but not defined have the respective
meanings given to them in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, Investor has caused its name to be signed hereto by
its duly authorized officer, as of the day and year written above.
[PROSPECTIVE INVESTOR]
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Telephone No.:
-----------------------------
SCHEDULE I
[Information Requested]
EXHIBIT K
FORM OF INVESTOR CERTIFICATION
Dated:
▇▇▇▇▇ Fargo Bank, National Association
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Services (CMBS) (GE Commercial Mortgage
Corporation, Commercial Mortgage Pass-Through Certificates, Series 2007-C1)
In accordance with the Pooling and Servicing Agreement, dated as of
May 1, 2007 (the "Agreement"), by and among GE Commercial Mortgage Corporation,
as Depositor, KeyCorp Real Estate Capital Markets, Inc., as Servicer No. 1, Bank
of America, National Association, as Servicer No. 2 (and together with Servicer
No. 1, the "Servicers"), LNR Partners, Inc., as Special Servicer and ▇▇▇▇▇ Fargo
Bank, National Association, as Trustee, with respect to the above referenced
certificates (the "Certificates"), the undersigned hereby certifies and agrees
as follows:
1. The undersigned is a beneficial owner or prospective purchaser of
the Class __ Certificates.
2. The undersigned is requesting access to the Trustee's internet
website containing certain information (the "Information") and/or is requesting
the information identified on the schedule attached hereto (also, the
"Information") pursuant to the provisions of the Agreement.
3. In consideration of the Trustee's disclosure to the undersigned
of the Information, or access thereto, the undersigned will keep the Information
confidential (except from such outside persons as are assisting it in making an
evaluation in connection with purchasing the related Certificates, from its
accountants and attorneys, and otherwise from such governmental or banking
authorities or agencies to which the undersigned is subject), and such
Information will not, without the prior written consent of the Trustee, be
otherwise disclosed by the undersigned or by its officers, directors, partners,
employees, agents or representatives (collectively, the "Representatives") in
any manner whatsoever, in whole or in part.
4. The undersigned will not use or disclose the Information in any
manner which could result in a violation of any provision of the Securities Act
of 1933, as amended (the "Securities Act"), or of the Securities Exchange Act of
1934, as amended, or would require registration of any Certificate pursuant to
Section 5 of the Securities Act.
5. 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 Servicers, 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.
6. Capitalized terms used but not defined herein shall have the
respective meanings assigned thereto in the Agreement.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
_______________________________________
Certificate Owner or Prospective
Purchaser
By:____________________________________
Title:_________________________________
Company:_______________________________
Phone:_________________________________
EXHIBIT L
[RESERVED]
EXHIBIT M
RESERVED
EXHIBIT N
FORM OF TRANSFER CERTIFICATE FOR
RULE 144A BOOK-ENTRY CERTIFICATE TO REGULATION S
BOOK-ENTRY CERTIFICATE ON OR PRIOR TO THE RELEASE DATE
(Pursuant to Section 5.02(b) of the Pooling and Servicing Agreement)
GE Commercial Mortgage Corporation,
Commercial Mortgage Pass-Through Certificates,
Series 2007-C1, Class __ (the "Certificates")
▇▇▇▇▇ Fargo Bank, National Association
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Services (CMBS) (GE Commercial Mortgage
Corporation, Commercial Mortgage Pass-Through Certificates, Series 2007-C1
TO: [▇▇▇▇▇▇ Guaranty Trust Company
of New York, Brussels Office
Euroclear Operation Center
or
Clearstream Services]
Re: Transfer of GE Commercial Mortgage Corporation, Commercial Mortgage
Pass-Through Certificates, Series 2007-C1 Class
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement,
dated as of May 1, 2007 (the "Pooling and Servicing Agreement"), by and among GE
Commercial Mortgage Corporation, as depositor (the "Depositor"), KeyCorp Real
Estate Capital Markets, Inc., as a servicer, ("Servicer No. 1"), Bank of
America, National Association, as a servicer ("Servicer No. 2", and together
with the Servicer No. 1, the "Servicers"), LNR Partners, Inc., as special
servicer (the "Special Servicer") and Bank of America, National Association, as
trustee (the "Trustee"), on behalf of the holders of GE Commercial Mortgage
Corporation, Commercial Mortgage Pass-Through Certificates, Series 2007-C1.
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
Balance][Notional Amount] of Certificates (the "Certificates") which are held in
the form of the Rule 144A Book-Entry 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 Book-Entry Certificate (CUSIP No. __________) to be held
with [Euroclear] [Clearstream]* (Common Code No.____________) through the
Depository.
---------------------------------
* Select appropriate 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 person acting on
its behalf reasonably believed that the transferee was outside the
United States] [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 pre-arranged with a buyer in the United States],**
(3) the transferee is not a U.S. Person within the meaning of Rule
902(o) of Regulation S nor a Person acting for the account or
benefit of a U.S. Person,
(4) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable,
(5) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act, and
(6) upon completion of the transaction, the beneficial interest
being transferred as described above will be held with the
Depository through [Euroclear] [Clearstream].*
-------------------------------
* Select appropriate depository.
** Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Servicers and
the Special Servicer.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
EXHIBIT O
FORM OF TRANSFER CERTIFICATE FOR
RULE 144A BOOK-ENTRY CERTIFICATE TO REGULATION S
BOOK-ENTRY CERTIFICATE AFTER THE RELEASE DATE
(Pursuant to Section 5.02(b) of the Pooling and Servicing Agreement)
▇▇▇▇▇ Fargo Bank, National Association
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Services (CMBS) (GE Commercial Mortgage
Corporation, Commercial Mortgage Pass-Through Certificates, Series 2007-C1
GE Commercial Mortgage Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Legal Department (Real Estate)
Re: Transfer of GE Commercial Mortgage Corporation, Commercial Mortgage
Pass-Through Certificates, Series 2007-C1 Class
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement,
dated as of May 1, 2007 (the "Pooling and Servicing Agreement"), by and among GE
Commercial Mortgage Corporation, as depositor (the "Depositor"), KeyCorp Real
Estate Capital Markets, Inc., as a servicer ("Servicer No. 1"), Bank of America,
National Association, as a servicer ("Servicer No. 2", and together with the
Servicer No. 1, the "Servicers"), LNR Partners, Inc., as special servicer (the
"Special Servicer") and ▇▇▇▇▇ Fargo Bank, National Association, as trustee (the
"Trustee"), on behalf of the holders of GE Commercial Mortgage Corporation,
Commercial Mortgage Pass-Through Certificates, Series 2007-C1. 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 Balance]
[Notional Amount] of Certificates (the "Certificates") which are held in the
form of the Rule 144A Book-Entry 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 Book-Entry Certificate (Common
Code 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] [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 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 Rule 904(b) of Regulation S, as
applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act,
or (ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Transferor does hereby certify that the Certificates that
are being transferred are not "restricted securities" as defined in Rule 144
under the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Servicers and
the Special Servicer.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
-----------------------------
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
EXHIBIT P
FORM OF TRANSFER CERTIFICATE FOR
REGULATION S BOOK-ENTRY CERTIFICATE
TO RULE 144A BOOK-ENTRY CERTIFICATE
ON OR PRIOR TO THE RELEASE DATE
(Pursuant to Section 5.02(b) of the Pooling and Servicing Agreement)
▇▇▇▇▇ Fargo Bank, National Association
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Services (CMBS) (GE Commercial Mortgage
Corporation, Commercial Mortgage Pass-Through Certificates, Series 2007-C1
GE Commercial Mortgage Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Legal Department (Real Estate)
Re: Transfer of GE Commercial Mortgage Corporation, Commercial Mortgage
Pass-Through Certificates, Series 2007-C1 Class
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement,
dated as of May 1, 2007 (the "Pooling and Servicing Agreement"), by and among GE
Commercial Mortgage Corporation, as depositor (the "Depositor"), KeyCorp Real
Estate Capital Markets, Inc., as a servicer ("Servicer No. 1"), Bank of America,
National Association, as a servicer ("Servicer No. 2", and together with the
Servicer No. 1, the "Servicers"), LNR Partners, Inc., as special servicer (the
"Special Servicer") and ▇▇▇▇▇ Fargo Bank, National Association, as trustee (the
"Trustee"), on behalf of the holders of GE Commercial Mortgage Corporation,
Commercial Mortgage Pass-Through Certificates, Series 2007-C1. 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 Balance]
[Notional Amount] of Certificates (the "Certificates") which are held in the
form of the Regulation S Book-Entry Certificate (CUSIP No. _______) with
[Euroclear] [Clearstream]* (Common Code 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 Regulation 144A Book-Entry Certificate (CUSIP No.____________).
-----------------------------
* Select appropriate depository.
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 of the United States or any
jurisdiction.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Servicers, the
Special Servicer and the Initial Purchasers of the offering of the Certificates.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
EXHIBIT Q
FORM OF TRANSFER CERTIFICATE FOR TRANSFERS WITHIN REGULATION S
BOOK-ENTRY CERTIFICATE ON OR PRIOR TO THE RELEASE DATE
▇▇▇▇▇ Fargo Bank, National Association
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Services (CMBS) (GE Commercial Mortgage
Corporation, Commercial Mortgage Pass-Through Certificates, Series 2007-C1
GE Commercial Mortgage Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Legal Department (Real Estate)
Re: Transfer of GE Commercial Mortgage Corporation, Commercial Mortgage
Pass-Through Certificates, Series 2007-C1 Class
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement,
dated as of May 1, 2007 (the "Pooling and Servicing Agreement"), by and among GE
Commercial Mortgage Corporation, as depositor (the "Depositor"), KeyCorp Real
Estate Capital Markets, Inc., as a servicer ("Servicer No. 1"), Bank of America,
National Association, as a servicer ("Servicer No. 2", and together with the
Servicer No. 1, the "Servicers"), LNR Partners, Inc., as special servicer (the
"Special Servicer") and ▇▇▇▇▇ Fargo Bank, National Association, as trustee (the
"Trustee"), on behalf of the holders of GE Commercial Mortgage Corporation,
Commercial Mortgage Pass-Through Certificates, Series 2007-C1 in connection with
the transfer by _______________ of a beneficial interest of $___________
[Certificate Balance] [Notional Amount] in a Book-Entry Certificate on or prior
to the Release Date to the undersigned (the "Transferee"). The Transferee
desires to beneficially own such transferred interest in the form of the
Regulation S Book-Entry Certificate. Capitalized terms used but not defined
herein shall have the meanings given to them in the Pooling and Servicing
Agreement.
In connection with such transfer, the Transferee does hereby certify
that it is not a "U.S. Person" (within the meaning of Rule 902 of Regulation S
under the Securities Act of 1933, as amended). This certificate and the
statements contained herein are made for your benefit and the benefit of the
Depositor, the Trustee, the Servicers and the Special Servicer.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
EXHIBIT R-1
FORM OF TRANSFER CERTIFICATE FOR DEFINITIVE CERTIFICATE
TO REGULATION S BOOK-ENTRY CERTIFICATE
ON OR PRIOR TO THE RELEASE DATE
▇▇▇▇▇ Fargo Bank, National Association
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Services (CMBS) (GE Commercial Mortgage
Corporation, Commercial Mortgage Pass-Through Certificates, Series 2007-C1
GE Commercial Mortgage Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Legal Department (Real Estate)
Re: Transfer of GE Commercial Mortgage Corporation, Commercial Mortgage
Pass-Through Certificates, Series 2007-C1 Class
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02(b) of the
Pooling and Servicing Agreement, dated as of May 1, 2007 (the "Pooling and
Servicing Agreement"), by and among GE Commercial Mortgage Corporation, as
depositor (the "Depositor"), KeyCorp Real Estate Capital Markets, Inc., as a
servicer ("Servicer No. 1"), Bank of America, National Association, as a
servicer ("Servicer No. 2", and together with the Servicer No. 1, the
"Servicers"), LNR Partners, Inc., as special servicer (the "Special Servicer")
and ▇▇▇▇▇ Fargo Bank, National Association, as trustee (the "Trustee"), on
behalf of the holders of GE Commercial Mortgage Corporation, Commercial Mortgage
Pass-Through Certificates, Series 2007-C1, Class __ (the "Certificates") in
connection with the transfer by the undersigned (the "Transferor") of
$__________________ [Certificate Balance] [Notional Amount] of Certificates, in
fully registered form (such transferred interest being the "Transferred
Interest") to ___________ (the "Transferee"), who will take delivery in the form
of a beneficial interest in such [Certificate Balance] [Notional Amount] in the
Regulation S Book-Entry Certificate maintained by the Depository Trust Company
or its successor as Depository under the Pooling and Servicing Agreement.
In connection with such transfer, 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 ("Regulation S") promulgated under the Securities Act of 1933, as
amended (the "Securities Act"), the Transferor does hereby certify that:
(1) the offer of the Transferred Interest 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] [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) the transferee is not a U.S. Person within the meaning of Rule
902(o) of Regulation S nor a person acting for the account or
benefit of a U.S. Person, and upon completion of the transaction,
the Transferred Interest will be held with the Depository through
[Euroclear] [Clearstream];**
(4) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 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.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Servicers and
the Special Servicer.
[Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
------------------------------
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
** Select appropriate depository.
EXHIBIT R-2
FORM OF TRANSFER CERTIFICATE FOR DEFINITIVE CERTIFICATE
TO REGULATION S BOOK-ENTRY CERTIFICATE
AFTER THE RELEASE DATE
▇▇▇▇▇ Fargo Bank, National Association
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Services (CMBS) (GE Commercial Mortgage
Corporation, Commercial Mortgage Pass-Through Certificates, Series 2007-C1
GE Commercial Mortgage Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Legal Department (Real Estate)
Re: Transfer of GE Commercial Mortgage Corporation, Commercial Mortgage
Pass-Through Certificates, Series 2007-C1 Class
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02(b) the
Pooling and Servicing Agreement, dated as of May 1, 2007 (the "Pooling and
Servicing Agreement"), by and among GE Commercial Mortgage Corporation, as
depositor (the "Depositor"), KeyCorp Real Estate Capital Markets, Inc., as a
servicer ("Servicer No. 1"), Bank of America, National Association, as a
servicer ("Servicer No. 2", and together with the Servicer No. 1, the
"Servicers"), LNR Partners, Inc., as special servicer (the "Special Servicer")
and ▇▇▇▇▇ Fargo Bank, National Association, as trustee (the "Trustee"), on
behalf of the holders of GE Commercial Mortgage Corporation, Commercial Mortgage
Pass-Through Certificates, Series 2007-C1, Class __ (the "Certificates") in
connection with the transfer by the undersigned (the "Transferor") of
$__________________ [Certificate Balance][Notional Amount] of Certificates, in
fully registered form (such transferred interest being the "Transferred
Interest") to ___________ (the "Transferee"), who will take delivery in the form
of a beneficial interest in such [Certificate Balance] [Notional Amount] in the
Regulation S Book-Entry Certificate maintained by the Depository Trust Company
or its successor as Depository under the Pooling and Servicing Agreement.
In connection with such transfer, 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 ("Regulation S") promulgated under the Securities Act of 1933, as
amended (the "Securities Act"), the Transferor does hereby certify that:
(1) the offer of the Transferred Interest 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] [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 Rule 904(b) of Regulation S, as
applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act,
or (ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Transferor does hereby certify that the Certificates that
are being transferred are not "restricted securities" as defined in Rule 144
under the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Servicers and
the Special Servicer.
[Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
-------------------------------
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
EXHIBIT S
FORM OF TRANSFER CERTIFICATE FOR BOOK-ENTRY CERTIFICATE
TO REGULATION S DEFINITIVE CERTIFICATE
▇▇▇▇▇ Fargo Bank, National Association
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Services (CMBS) (GE Commercial Mortgage
Corporation, Commercial Mortgage Pass-Through Certificates, Series 2007-C1
GE Commercial Mortgage Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Legal Department (Real Estate)
Re: Transfer of GE Commercial Mortgage Corporation, Commercial Mortgage
Pass-Through Certificates, Series 2007-C1 Class
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02(b) the
Pooling and Servicing Agreement, dated as of May 1, 2007 (the "Pooling and
Servicing Agreement"), by and among GE Commercial Mortgage Corporation, as
depositor (the "Depositor"), KeyCorp Real Estate Capital Markets, Inc., as a
servicer ("Servicer No. 1"), Bank of America, National Association, as a
servicer ("Servicer No. 2", and together with the Servicer No. 1, the
"Servicers"), LNR Partners, Inc., as special servicer (the "Special Servicer")
and ▇▇▇▇▇ Fargo Bank, National Association, as trustee (the "Trustee"), on
behalf of the holders of GE Commercial Mortgage Corporation, Commercial Mortgage
Pass-Through Certificates, Series 2007-C1, Class __ (the "Certificates") in
connection with the transfer by the undersigned (the "Transferor") of a
beneficial interest in $__________________ [Certificate Balance] [Notional
Amount] of Book-Entry Certificates to _________ (the "Transferee"), who will
take delivery in fully registered form (such transferred interest being the
"Transferred Interest").
In connection with such transfer, 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 ("Regulation S") promulgated under the Securities Act of 1933, as
amended (the "Securities Act"), the Transferor does hereby certify that:
(1) the offer of the Transferred Interest 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] [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 Rule 904(b) of Regulation S, as
applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act,
or (ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Transferor does hereby certify that the Certificates that
are being transferred are not "restricted securities" as defined in Rule 144
under the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Servicers and
the Special Servicer.
[Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
-------------------------------
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
EXHIBIT T
WHOLE LOAN REPORT
Prosupp ID Original Total Original Split
or Loan Amount Amount
Sequence (same for Included in Split Amount as
▇▇▇▇ ID Number Contributor Loan Name each) Trust of Closing Date
------------- ---------- ----------- ------------------------------- --------------- --------------- ---------------
GECMC 2007-C1 1 BCRE ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ $1,215,000,000 $249,000,000 [___]
N/A N/A BCRE ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ $1,215,000,000 [___] [___]
P&I T&I / PPA
Paid Thru Split Loan ID Advancing Advancing
Date as of (▇-▇, ▇-▇, B, Paying Master Servicer Servicer Special
▇▇▇▇ ID Closing Date Mezz) Agent Servicer (Y, N, n/a) (Y, N, n/a) Servicer
------------- ------------ ------------- ------- -------- ----------- ----------- --------
GECMC 2007-C1 [___] [___] ▇▇▇▇▇ BOA Y [___] LNR
N/A [___] [___] N/A N/A N/A [___] N/A
Prosupp ID Original Total Original Split
or Loan Amount Amount
Sequence (same for Included in Split Amount as
▇▇▇▇ ID Number Contributor Loan Name each) Trust of Closing Date
------------- ---------- ----------- ------------------------------- --------------- --------------- ---------------
BACM 2007-1 [__] BOA Skyline Portfolio $678,000,000 [_________] [_________]
GECMC 2007-C1 4 BOA Skyline Portfolio $678,000,000 $203,400,000 [_________]
2007-LDP10 [__] BOA Skyline Portfolio $678,000,000 [_________] [_________]
P&I T&I / PPA
Paid Thru Split Loan ID Advancing Advancing
Date as of (▇-▇, ▇-▇, B, Paying Master Servicer Servicer Special
▇▇▇▇ ID Closing Date Mezz) Agent Servicer (Y, N, n/a) (Y, N, n/a) Servicer
------------- ------------ ------------- ------- -------- ----------- ----------- --------
▇▇▇▇ ▇▇▇▇-▇ [_________] [_________] LaSalle BOA N [___] LNR
GECMC 2007-C1 [_________] [_________] ▇▇▇▇▇ KeyCorp Y [___] LNR
2007-LDP10 [_________] [_________] [___] [___] N [___] [___]
Prosupp ID Original Total Original Split
or Loan Amount Amount
Sequence (same for Included in Split Amount as
▇▇▇▇ ID Number Contributor Loan Name each) Trust of Closing Date
------------- ---------- ----------- ------------------------------- --------------- --------------- ---------------
N/A N/A GACC The Enclave $225,000,000 [___] [___]
GECMC 2007-C1 6 GACC The Enclave $225,000,000 $200,000,000 [___]
P&I T&I / PPA
Paid Thru Split Loan ID Advancing Advancing
Date as of (▇-▇, ▇-▇, B, Paying Master Servicer Servicer Special
▇▇▇▇ ID Closing Date Mezz) Agent Servicer (Y, N, n/a) (Y, N, n/a) Servicer
------------- ------------ ------------- ------- -------- ----------- ----------- --------
N/A [___] [___] ▇/▇ ▇/▇ ▇/▇ [___] N/A
GECMC 2007-C1 [___] [___] ▇▇▇▇▇ KeyCorp Y [___] LNR
Prosupp ID Original Total Original Split
or Loan Amount Amount
Sequence (same for Included in Split Amount as
▇▇▇▇ ID Number Contributor Loan Name each) Trust of Closing Date
------------- ---------- ----------- ------------------------------- --------------- --------------- ---------------
GECMC 2007-C1 8 GACC Four Seasons Resort Maui $425,000,000 $175,000,000 [___]
CD 2007-CD4 [___] GACC Four Seasons Resort Maui $425,000,000 [___] [___]
P&I T&I / PPA
Paid Thru Split Loan ID Advancing Advancing
Date as of (▇-▇, ▇-▇, B, Paying Master Servicer Servicer Special
▇▇▇▇ ID Closing Date Mezz) Agent Servicer (Y, N, n/a) (Y, N, n/a) Servicer
------------- ------------ ------------- ------- -------- ----------- ----------- --------
GECMC 2007-C1 [___] [___] ▇▇▇▇▇ KeyCorp N [___] LNR
CD 2007-CD4 [___] [___] [___] Wachovia Y [___] LNR
Prosupp ID Original Total Original Split
or Loan Amount Amount
Sequence (same for Included in Split Amount as
▇▇▇▇ ID Number Contributor Loan Name each) Trust of Closing Date
------------- ---------- ----------- ------------------------------- --------------- --------------- ---------------
GECMC 2007-C1 9 BOA Pacific Shores $331,750,000 $165,875,000 [___]
BACM 2007-1 [___] BOA Pacific Shores $331,750,000 [___] [___]
P&I T&I / PPA
Paid Thru Split Loan ID Advancing Advancing
Date as of (▇-▇, ▇-▇, B, Paying Master Servicer Servicer Special
▇▇▇▇ ID Closing Date Mezz) Agent Servicer (Y, N, n/a) (Y, N, n/a) Servicer
------------- ------------ ------------- ------- -------- ----------- ----------- --------
GECMC 2007-C1 [___] [___] ▇▇▇▇▇ KeyCorp Y [__] LNR
BACM 2007-1 [___] [___] LaSalle BOA N [__] LNR
Prosupp ID Original Total Original Split
or Loan Amount Amount
Sequence (same for Included in Split Amount as
▇▇▇▇ ID Number Contributor Loan Name each) Trust of Closing Date
------------- ---------- ----------- ------------------------------- --------------- --------------- ---------------
GECMC ▇▇▇▇-▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ $755,000,000 $104,000,000 [___]
CD 2007-CD4 [___] GACC Mall of America $755,000,000 [___] [___]
COMM 2006-C8 [___] GACC Mall of America $755,000,000 [___] [___]
P&I T&I / PPA
Paid Thru Split Loan ID Advancing Advancing
Date as of (▇-▇, ▇-▇, B, Paying Master Servicer Servicer Special
▇▇▇▇ ID Closing Date Mezz) Agent Servicer (Y, N, n/a) (Y, N, n/a) Servicer
------------- ------------ ------------- ------- -------- ----------- ----------- --------
GECMC 2007-C1 [___] [___] ▇▇▇▇▇ KeyCorp Y [___] LNR
CD 2007-CD4 [___] [___] ▇▇▇▇▇ Wachovia, N [___] LNR
Capmark
COMM 2006-C8 [___] [___] LaSalle Midland N [___] LNR
Prosupp ID Original Total Original Split
or Loan Amount Amount
Sequence (same for Included in Split Amount as
▇▇▇▇ ID Number Contributor Loan Name each) Trust of Closing Date
------------- ---------- ----------- ------------------------------- --------------- --------------- ---------------
GECMC ▇▇▇▇-▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Portfolio $350,000,000 $30,000,000 [___]
JPMCC 2007CIBC18 [___] GACC Americold Portfolio $350,000,000 [___] [___]
2007-LDP10 [___] GACC Americold Portfolio $350,000,000 [___] [___]
CD 2007-CD4 [___] GACC Americold Portfolio $350,000,000 [___] [___]
N/A N/A GACC Americold Portfolio $350,000,000 [___] [___]
P&I T&I / PPA
Paid Thru Split Loan ID Advancing Advancing
Date as of (▇-▇, ▇-▇, B, Paying Master Servicer Servicer Special
▇▇▇▇ ID Closing Date Mezz) Agent Servicer (Y, N, n/a) (Y, N, n/a) Servicer
------------- ------------ ------------- ------- -------- ----------- ----------- --------
GECMC 2007-C1 [___] [___] ▇▇▇▇▇ KeyCorp Y [___] LNR
JPMCC 2007CIBC18 [___] [___] ▇▇▇▇▇ Capmark N [___] LNR
2007-LDP10 [___] [___] ▇▇▇▇▇ Midland N [___] LNR
CD 2007-CD4 [___] [___] ▇▇▇▇▇ Wachovia N [___] LNR
N/A [___] [___] N/A N/A N/A [___] N/A
Prosupp ID Original Total Original Split
or Loan Amount Amount
Sequence (same for Included in Split Amount as
▇▇▇▇ ID Number Contributor Loan Name each) Trust of Closing Date
------------- ---------- ----------- ------------------------------- --------------- --------------- ---------------
GECMC 2007-C1 41 BOA Clarion LaGuardia Airport Hotel $19,300,000 $17,300,000 [___]
N/A N/A BOA Clarion LaGuardia Airport Hotel $19,300,000 [___] [___]
P&I T&I / PPA
Paid Thru Split Loan ID Advancing Advancing
Date as of (▇-▇, ▇-▇, B, Paying Master Servicer Servicer Special
▇▇▇▇ ID Closing Date Mezz) Agent Servicer (Y, N, n/a) (Y, N, n/a) Servicer
------------- ------------ ------------- ------- -------- ----------- ----------- --------
GECMC 2007-C1 [___] [___] ▇▇▇▇▇ KeyCorp Y [___] LNR
N/A [___] [___] N/A N/A N/A [___] N/A
Prosupp ID Original Total Original Split
or Loan Amount Amount
Sequence (same for Included in Split Amount as
▇▇▇▇ ID Number Contributor Loan Name each) Trust of Closing Date
------------- ---------- ----------- ------------------------------- --------------- --------------- ---------------
GECMC 2007-C1 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ Jolla $7,622,000 $7,200,000 [___]
▇/▇ ▇/▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ Jolla $7,622,000 [___] [___]
P&I T&I / PPA
Paid Thru Split Loan ID Advancing Advancing
Date as of (▇-▇, ▇-▇, B, Paying Master Servicer Servicer Special
▇▇▇▇ ID Closing Date Mezz) Agent Servicer (Y, N, n/a) (Y, N, n/a) Servicer
------------- ------------ ------------- ------- -------- ----------- ----------- --------
GECMC 2007-C1 [___] [___] ▇▇▇▇▇ KeyCorp Y [___] LNR
N/A [___] [___] N/A N/A N/A [___] N/A
Prosupp ID Original Total Original Split
or Loan Amount Amount
Sequence (same for Included in Split Amount as
▇▇▇▇ ID Number Contributor Loan Name each) Trust of Closing Date
------------- ---------- ----------- ------------------------------- --------------- --------------- ---------------
GECMC 2007-C1 114 GECC Downtown Plaza $6,920,000 $6,513,000 [___]
N/A N/A GECC Downtown Plaza $6,920,000 [___] [___]
P&I T&I / PPA
Paid Thru Split Loan ID Advancing Advancing
Date as of (▇-▇, ▇-▇, B, Paying Master Servicer Servicer Special
▇▇▇▇ ID Closing Date Mezz) Agent Servicer (Y, N, n/a) (Y, N, n/a) Servicer
------------- ------------ ------------- ------- -------- ----------- ----------- --------
GECMC 2007-C1 [___] [___] ▇▇▇▇▇ KeyCorp Y [___] LNR
N/A [___] [___] ▇/▇ ▇/▇ ▇/▇ [___] N/A
EXHIBIT U-1
FORM OF PERFORMANCE CERTIFICATION
Re: GE Commercial Mortgage Corporation, Commercial Mortgage
Pass-Through Certificates, Series 2007-C1, issued pursuant to the Pooling and
Servicing Agreement dated as of May 1, 2007 (the "Pooling and Servicing
Agreement") between GE Commercial Mortgage Corporation, as depositor, KeyCorp
Real Estate Capital Markets, Inc., as a servicer, ("Servicer No. 1"), Bank of
America, National Association, as a servicer ("Servicer No. 2", and together
with the Servicer No. 1, the "Servicers"), LNR Partners, Inc., as special
servicer (the "Special Servicer") and ▇▇▇▇▇ Fargo Bank, National Association, as
trustee (the "Trustee").
Capitalized terms used but not defined herein have the meanings set
forth in the Pooling and Servicing Agreement.
--------------------------------------------------
I, [identity of certifying individual], the senior officer in charge
of securitization of the Depositor, hereby certify that:
1. I have reviewed this 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 of GE Commercial Mortgage Corporation, Series 2007-C1 Trust (the
"Exchange Act Periodic Reports");
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 the light of the
circumstances under which such statements were made, not misleading with respect
to the period covered by this report;
3. Based on my knowledge, all distribution, servicing and other
information required to be provided under Form 10-D for the period covered by
this report is included in the Exchange Act Periodic Reports;
4. Based on my knowledge and the servicer compliance statement(s)
required in this report under Item 1123 of Regulation AB, and except as
disclosed in the Exchange Act Periodic Reports, the Servicers, the Special
Servicer, and the Reporting Sub Servicers have in all material respects
fulfilled their obligations under the Pooling and Servicing Agreement or the
applicable sub-servicing agreement or primary servicing agreement; and
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.
In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties;
o KeyCorp Real Estate Capital Markets, Inc., as Servicer No. 1;
o Bank of America, National Association, as Servicer No. 2;
o LNR Partners, Inc., as Special Servicer;
o Wells Fargo Bank, National Association, as Trustee; and
o Bank of America, National Association, as a Sub-Servicer
o Wachovia Bank, National Association, as a Sub-Servicer
o [names of sub-servicers]
Date: [___]
By:____________________________________
Name:
Title:
EXHIBIT U-2
FORM OF SERVICER PERFORMANCE CERTIFICATION
GE Commercial Mortgage Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Legal Department (Real Estate)
Re: GE Commercial Mortgage Corporation, Commercial Mortgage
Pass-Through Certificates, Series 2007-C1, issued pursuant to the Pooling and
Servicing Agreement dated as of May 1, 2007 (the "Pooling and Servicing
Agreement") between GE Commercial Mortgage Corporation, as depositor, KeyCorp
Real Estate Capital Markets, Inc., as a servicer, (the "Master Servicer No. 1"),
Bank of America, National Association, as a servicer (the "Master Servicer No.
2", and together with the Master Servicer No. 1, the "Master Servicers"), LNR
Partners, Inc., as special servicer (the "Special Servicer") and ▇▇▇▇▇ Fargo
Bank, National Association, as trustee (the "Trustee").
Capitalized terms used but not defined herein have the meanings set
forth in the Pooling and Servicing Agreement.
I, [identity of certifying individual], a [title] of [KeyCorp Real
Estate Capital Markets, Inc.] [Bank of America, National Association], hereby
certify to the Depositor and its officers, directors and Affiliates
(collectively, the "Certification Parties") as follows, with the knowledge and
intent that the Certification Parties will rely on this Certification:
1. I (or persons under my supervision) have reviewed the servicing
reports relating to the Trust delivered by the Master Servicers pursuant to the
Pooling and Servicing Agreement covering the fiscal year [_____] (collectively,
the "Master Servicer Periodic Reports");
2. Based on my knowledge, and (a) assuming the accuracy of the
statements required to be made in the corresponding certificate of the Special
Servicer pursuant to Section 11.08 of the Pooling and Servicing Agreement and
(b) assuming that the information regarding the mortgage loans, the mortgagors
or the mortgaged properties in the prospectus (the "Mortgage Information") does
not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statement made, in the light of the circumstances
under which such statements were made, not misleading (but only to the extent
that such Mortgage Information is or shall be used by the servicer to prepare
the servicing reports), the Master Servicer 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 therein, in light of the
circumstances under which such statements were made, not misleading with respect
to the period covered by the Form 10-K;
3. Based on my knowledge, assuming the accuracy of the statements
required to be made in the corresponding certificate of the Special Servicer
pursuant to Section 11.08 of the Pooling and Servicing Agreement, all servicing
information required to be provided in the Master Servicer Periodic Reports
under the provisions of the Pooling and Servicing Agreement for the fiscal year
[_____] is included in the Master Servicer Periodic Reports;
4. I am responsible for reviewing the activities performed by the
Master Servicer under the Pooling and Servicing Agreement and based on my
knowledge and the compliance review conducted in preparing the Master Servicer's
compliance statement for the fiscal year [_____] under the Pooling and Servicing
Agreement in connection with Item 1123 of Regulation AB, and except as disclosed
in the Master Servicer Periodic Reports, the Master Servicer has fulfilled its
obligations under the Pooling and Servicing Agreement in all material respects;
and
5. All annual assessment reports required under Section 11.12 of the
Pooling and Servicing Agreement and their related annual attestation reports
required to be provided to the Trustee and the Depositor by the Master Servicer
or any Servicing Function Participant retained by the Master Servicer (other
than a Loan Seller Sub-Servicer) under or as contemplated by the Pooling and
Servicing Agreement have been provided thereby. Based on my knowledge, there are
no material instances of noncompliance relating to the Master Servicer's or any
such other party's compliance with the Relevant Servicing Criteria, in each case
based upon the annual attestation report provided by a registered public
accounting firm, after conducting a review in compliance with the standards for
attestation engagements issued or adopted by the PCAOB, delivered pursuant to
Section 11.13 of the Pooling and Servicing Agreement, except as disclosed in
such reports.
In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties: [name of
trustee, name or paying agent, certificate administrator or other similar party;
name of depositor; name of servicer; name of other subservicers].
In addition, notwithstanding the foregoing certifications under
clauses (2) and (3) above, the Master Servicer does not make any certification
under such clauses (2) and (3) above with respect to the information in the
servicing reports delivered by the Master Servicer to the Trustee referred to in
such clauses (2) and (3) above that is in turn dependent upon information
provided by the Special Servicer under the Pooling and Servicing Agreement
beyond the corresponding certification actually provided by the Special Servicer
pursuant to Section 11.08 of the Pooling and Servicing Agreement. Further,
notwithstanding the foregoing certifications, the Master Servicer does not make
any certification under the foregoing clauses (1) through (5) that is in turn
dependent (i) upon information required to be provided by any Sub-Servicer
acting under a Sub-Servicing Agreement that the Master Servicer entered into in
connection with the issuance of the Certificates, or upon the performance by any
such Sub-Servicer of its obligations pursuant to any such Sub-Servicing
Agreement, in each case beyond the respective backup certifications actually
provided by such Sub-Servicer to the Master Servicer with respect to the
information that is the subject of such certification, or (ii) upon information
required to be provided by the Non-Serviced Mortgage Loan Servicer or upon the
performance by the Non-Serviced Mortgage Loan Servicer of its obligations
pursuant to the Non-Serviced Mortgage Loan Pooling and Servicing Agreement, in
each case beyond the backup certification actually provided by the Non-Serviced
Mortgage Loan Servicer to the Master Servicer with respect to the information
that is the subject of such certification; provided that this clause (ii) shall
not apply in the event the Master Servicer is, or is an Affiliate of, the
Non-Serviced Mortgage Loan Servicer.
This Certification is being signed by me as an officer of the Master
Servicer responsible for reviewing the activities performed by the Master
Servicer under the Pooling and Servicing Agreement.
Date: [___]
By:____________________________________
Name:
Title:
EXHIBIT U-3
FORM OF SPECIAL SERVICER PERFORMANCE CERTIFICATION
GE Commercial Mortgage Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Legal Department (Real Estate)
Re: GE Commercial Mortgage Corporation, Commercial Mortgage
Pass-Through Certificates, Series 2007-C1, issued pursuant to the Pooling and
Servicing Agreement dated as of May 1, 2007 (the "Pooling and Servicing
Agreement") between GE Commercial Mortgage Corporation, as depositor, KeyCorp
Real Estate Capital Markets, Inc., as a servicer (the "Master Servicer No. 1"),
Bank of America, National Association, as a servicer (the "Master Servicer No.
2", and together with the Master Servicer No. 1, the "Master Servicers"), LNR
Partners, Inc., as special servicer (the "Special Servicer") and ▇▇▇▇▇ Fargo
Bank, National Association, as trustee (the "Trustee").
Capitalized terms used but not defined herein have the meanings set
forth in the Pooling and Servicing Agreement.
I, [identity of certifying individual], a [title] of LNR Partners,
Inc., hereby certify to the Depositor and its officers, directors and Affiliates
(collectively, the "Certification Parties") as follows, with the knowledge and
intent that the Certification Parties will rely on this Certification:
1. I have reviewed the servicing reports relating to the Trust
delivered by the Special Servicer pursuant to the Pooling and Servicing
Agreement covering the fiscal year [_____] (collectively, the "Special Servicer
Periodic Reports");
2. Based on my knowledge, the Special Servicer 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 therein, in light
of the circumstances under which such statements were made, not misleading with
respect to the period covered by the Form 10-K;
3. Based on my knowledge, all servicing information required to be
provided in the Special Servicer Periodic Reports under the provisions of the
Pooling and Servicing Agreement for the calendar year preceding the date of the
Form 10-K is included in the Special Servicer Periodic Reports;
4. I am responsible for reviewing the activities performed by the
Special Servicer and based on my knowledge and the compliance review conducted
in preparing the Special Servicer's compliance statement with respect to the
Trust for Exchange Act Reporting Year 2007under the Pooling and Servicing
Agreement in connection with Item 1123 of Regulation AB, and except as disclosed
in the Special Servicer Periodic Reports, the Special Servicer has fulfilled its
obligations under the Pooling and Servicing Agreement in all material respects;
5. I have disclosed to the accountants that are to deliver the
attestation report on assessment of compliance with servicing criteria for
asset-backed securities in respect of the Special Servicer with respect to the
Trust's fiscal year [_____] all information relating to the Special Servicer's
assessment of compliance with the Relevant Servicing Criteria in order to enable
them to conduct a review in compliance with the standards for attestation
engagements issued or adopted by the PCAOB; and
6. All annual assessment reports required under Section 11.12 of the
Pooling and Servicing Agreement and their related annual attestation reports
required to be provided to the Trustee and the Depositor by the Special Servicer
or any Servicing Function Participant retained by the Special Servicer (other
than a Loan Seller Sub-Servicer) under or as contemplated by the Pooling and
Servicing Agreement have been provided thereby. Based on my knowledge, there are
no significant deficiencies relating to the Special Servicer's or any such other
party's compliance with the Relevant Servicing Criteria, in each case based upon
the annual attestation report provided by a registered public accounting firm,
after conducting a review in compliance with the standards for attestation
engagements issued or adopted by the PCAOB, delivered pursuant to Section 11.13
of the Pooling and Servicing Agreement, except as disclosed in such report.
Notwithstanding the foregoing certifications, the Special Servicer
does not make any certification under the foregoing clauses (1) through (5) that
is in turn dependent (i) upon information required to be provided by any
Sub-Servicer acting under a Sub-Servicing Agreement that the Special Servicer
entered into in connection with the issuance of the Certificates, or upon the
performance by any such Sub-Servicer of its obligations pursuant to any such
Sub-Servicing Agreement, in each case beyond the respective backup
certifications actually provided by such Sub-Servicer to the Special Servicer
with respect to the information that is the subject of such certification, or
(ii) upon information required to be provided by the Non-Serviced Mortgage Loan
Special Servicer or upon the performance by the Non-Serviced Mortgage Loan
Special Servicer of its obligations pursuant to the Non-Serviced Mortgage Loan
Pooling and Servicing Agreement, in each case beyond the backup certification
actually provided by the Non-Serviced Mortgage Loan Special Servicer to the
Special Servicer with respect to the information that is the subject of such
certification; provided that this paragraph shall not apply in the event the
Special Servicer is, or is an Affiliate of, the Non-Serviced Mortgage Loan
Special Servicer.
In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties: [name of
trustee, name or paying agent, certificate administrator or other similar party;
name of depositor; name of servicer; name of other subservicers].
This Certification is being signed by me as an officer of the
Special Servicer responsible for reviewing the activities performed by the
Special Servicer under the Pooling and Servicing Agreement.
Date: [___]
By:____________________________________
Name:
Title:
EXHIBIT U-4
FORM OF TRUSTEE PERFORMANCE CERTIFICATION
GE Commercial Mortgage Corporation
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Attention: Legal Department (Real Estate)
Re: GE Commercial Mortgage Corporation, Commercial Mortgage
Pass-Through Certificates, Series 2007-C1, issued pursuant to the Pooling and
Servicing Agreement dated as of May 1, 2007 (the "Pooling and Servicing
Agreement") between GE Commercial Mortgage Corporation, as depositor, KeyCorp
Real Estate Capital Markets, Inc., as a servicer (the "Master Servicer No. 1"),
Bank of America, National Association, as a servicer (the "Master Servicer No.
2", and together with the Master Servicer No. 1, the "Master Servicers"), LNR
Partners, Inc., as special servicer (the "Special Servicer") and ▇▇▇▇▇ Fargo
Bank, National Association, as trustee (the "Trustee").
Capitalized terms used but not defined herein have the meanings set
forth in the Pooling and Servicing Agreement.
I, [identify the certifying individual], a [title] of ▇▇▇▇▇ Fargo
Bank, National Association, certify to the Certifying Person, GE Commercial
Mortgage Corporation, and its officers, directors and Affiliates, and with the
knowledge and intent that they will rely upon this certification in delivering
the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification required by the Pooling and Servicing Agreement
relating to the Certificates, 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 included in the year
covered by this annual report, of the Trust;
2. Based on my knowledge, the distribution information in these
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 this report;
3. Based on my knowledge, the servicing information required to be
provided to the Trustee by the Master Servicer and Special Servicer under the
Pooling and Servicing Agreement is included in the reports delivered by the
Master Servicers and Special Servicer to the Trustee;
4. I am responsible for reviewing the activities performed by the
Trustee and based on my knowledge and the compliance reviews conducted in
preparing the Trustee compliance statements required for inclusion on Form 10-K
pursuant to Item 1123 of Regulation AB, and except as disclosed on any Form 10-D
or 10-K, the Trustee has fulfilled its obligations in all material respects
under the Pooling and Servicing Agreement; and
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
with respect to the Trustee required to be included in Form 10-K in accordance
with Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 have
been included as an exhibit to Form 10-K, except as otherwise disclosed in Form
10-K. Any material instances of noncompliance described in such reports have
been disclosed in such report on Form 10-K.
This Certification is being signed by me as an officer of the
Trustee responsible for reviewing the activities performed by the Trustee under
the Pooling and Servicing Agreement.
Date: [___]
By:____________________________________
Name:
Title:
EXHIBIT U-5
FORM OF SUBSERVICER PERFORMANCE CERTIFICATION
GE Commercial Mortgage Corporation
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Attention: Legal Department (Real Estate)
Bank of America, National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ , ▇▇▇▇▇ ▇▇▇
NC1-026-06-01
Charlotte, North Carolina
KeyCorp Real Estate Capital Markets, Inc.
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▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: GE Commercial Mortgage Corporation, Commercial Mortgage
Pass-Through Certificates, Series 2007-C1, issued pursuant to the Pooling and
Servicing Agreement dated as of May 1, 2007 (the "Pooling and Servicing
Agreement") between GE Commercial Mortgage Corporation, as depositor, KeyCorp
Real Estate Capital Markets, Inc., as a servicer (the "Master Servicer No. 1"),
Bank of America, National Association, as a servicer (the "Master Servicer No.
2", and together with the Master Servicer No. 1, the "Master Servicers"), LNR
Partners, Inc., as special servicer (the "Special Servicer") and ▇▇▇▇▇ Fargo
Bank, National Association, as trustee (the "Trustee"), and the Subservicing
Agreement, dated as of ____________________ (the "Subservicing Agreement")
between [subservicer] (the "Subservicer") and [identify counterparty].
Capitalized terms used but not defined herein have the meanings set
forth in the Subservicing Agreement or, if not defined in the Subservicing
Agreement, then the meanings set forth in the Pooling and Servicing Agreement.
I, [identity of certifying individual], a [title] of [Subservicer],
hereby certify to the Depositor, the applicable Master Servicer and their
officers, directors and Affiliates (collectively, the "Certification Parties")
as follows, with the knowledge and intent that the Certification Parties will
rely on this Certification:
1. I have reviewed the servicing reports relating to the Trust
delivered by the Subservicer pursuant to the Subservicing Agreement covering the
fiscal year 2007 (collectively, the "Subservicer Periodic Reports");
2. Based on my knowledge, the Subservicer 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 therein, in light of the
circumstances under which such statements were made, not misleading with respect
to the period covered by the Form 10-K;
3. Based on my knowledge, all servicing information required to be
provided in the Subservicer Periodic Reports under the provisions of the
Subservicing Agreement for the calendar year preceding the date of the Form 10-K
is included in the Subservicer Periodic Reports;
4. I am responsible for reviewing the activities performed by the
Subservicer and based on my knowledge and the compliance review conducted in
preparing the Subservicer's compliance statement under the Subservicing
Agreement in connection with Item 1123 of Regulation AB, and except as disclosed
in the Subservicer Periodic Reports, the Subservicer has fulfilled its
obligations under the Subservicing Agreement in all material respects;
5. I have disclosed to the accountants that are to deliver the
attestation report on assessment of compliance with servicing criteria for
asset-backed securities in respect of the Subservicer with respect to the
Trust's fiscal year 2007 all information relating to the Subservicer's
assessment of compliance with the Relevant Servicing Criteria in order to enable
them to conduct a review in compliance with the standards for attestation
engagements issued or adopted by the PCAOB; and
6. All annual assessment reports required under Section 11.12 of the
Subservicing Agreement and their related annual attestation reports required to
be provided to the Master Servicer, the Trustee and the Depositor by the
Subservicer or any Servicing Function Participant retained by the Subservicer
under or as contemplated by the Subservicing Agreement have been provided
thereby. Based on my knowledge, there are no significant deficiencies relating
to the Subservicer's or any such other party's compliance with the Relevant
Servicing Criteria, in each case based upon the annual attestation report
provided by a registered public accounting firm, after conducting a review in
compliance with the standards for attestation engagements issued or adopted by
the PCAOB, delivered pursuant to Section 11.13 of the Subservicing Agreement,
except as disclosed in such report.
In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties: [name of
trustee, name or paying agent, certificate administrator or other similar party;
name of depositor; name of servicer; name of other subservicers].
This Certification is being signed by me as an officer of the
Subservicer responsible for reviewing the activities performed by the
Subservicer under the Subservicing Agreement.
Date: [___]
By:____________________________________
Name:
Title:
EXHIBIT V-1
FORM OF CLOSING DATE CERTIFICATION
May 8, 2007
GE Commercial Mortgage Corp. German American Capital Corporation
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▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
KeyCorp Real Estate Capital Markets, Inc. Bank of America, National Association
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▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ NC1-026-06-01
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
LNR Partners, Inc. Standard & Poor's Ratings Services,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
General Electric Capital Corporation ▇▇▇▇▇'▇ Investors Service Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
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Barclays Capital Real Estate Inc. Bank of America, National Association
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ NC1-027-22-03
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: GE Commercial Mortgage Corporation, Commercial Mortgage Pass-Through
Certificates, Series 2007-C1
In accordance with Section 2.01(b) of the Pooling and Servicing
Agreement, dated as of May 1, 2007 (the "Agreement") among GE Commercial
Mortgage Corporation, as Depositor, KeyCorp Real Estate Capital Markets, Inc.,
as a Servicer, Bank of America, National Association, as a Servicer, LNR
Partners, Inc., as Special Servicer and the undersigned as Trustee, the Trustee
hereby certifies that, with respect to each Mortgage Loan listed on the Mortgage
Loan Schedule attached hereto as Schedule A, subject to the terms of the
Agreement and to any exceptions listed on Schedule B, (a) the Trustee has in its
possession all of the documents specified in clauses (i), (ii), (ix), (xvi) and
(xix) of the definition of "Mortgage File" and (b) the foregoing documents
delivered or caused to be delivered by the Mortgage Loan Sellers 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.
Pursuant to the Agreement, the Trustee is under no duty or
obligation (a) to determine whether any of the documents specified in clauses
(v), (vi), (vii), (viii), (x), (xiv), (xv), (xvii), (xviii) (xix) and (xxiii)
through (xxv) of the definition of "Mortgage File" exist or are required to be
delivered by the Depositor, the Mortgage Loan Sellers or any other Person or (b)
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 genuine, enforceable, sufficient to perfect and maintain the
perfection of a security interest or appropriate for the represented purpose or
that they are other than what they purport to be on their face.
Capitalized terms used but not defined herein shall the respective
meanings set forth in the Agreement.
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
[____________________]
Corporate Trust Officer
EXHIBIT V-2
FORM OF INITIAL CERTIFICATION
[DATE]
GE Commercial Mortgage Corp. German American Capital Corporation
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KeyCorp Real Estate Capital Markets, Inc. Bank of America, National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ NC1-026-06-01
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
LNR Partners, Inc. Standard & Poor's Ratings Services,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
General Electric Capital Corporation ▇▇▇▇▇'▇ Investors Service Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Barclays Capital Real Estate Inc. Bank of America, National Association.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ NC1-027-22-03
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: GE Commercial Mortgage Corporation, Commercial Mortgage Pass-Through
Certificates, Series 2007-C1
In accordance with Section 2.02(b) of the Pooling and Servicing
Agreement, dated as of May 1, 2007 (the "Agreement") among GE Commercial
Mortgage Corporation as Depositor, KeyCorp Real Estate Capital Markets, Inc., as
a Servicer, Bank of America, National Association, as a Servicer, LNR Partners,
Inc., as Special Servicer and the undersigned as Trustee, the Trustee hereby
certifies that, with respect to each Mortgage Loan listed on the Mortgage Loan
Schedule attached hereto as Schedule A, subject to the terms of the Agreement
and to any exceptions listed on Schedule B, (a) the Trustee has in its
possession all of the documents specified in clauses (i) through (v), (ix)
through (xii) and (xvi) through (xix) of the definition of "Mortgage File", (to
the extent the Trustee has actual knowledge that such documents are supposed to
be in the Mortgage File) (or, with respect to clause (xix), a copy of such
letter of credit if the Servicer has the original or an officer's certificate as
contemplated by the final sentence of Section 2.01(b) of the Agreement), (b) the
foregoing documents delivered or caused to be delivered by the Mortgage Loan
Sellers 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,
and (c) based on such examination and only as to the foregoing documents, the
information set forth in the Mortgage Loan Schedule with respect to the items
specified in clauses (iv), (vi) and (vii)(c) in the definition of "Mortgage Loan
Schedule" is correct.
Pursuant to the Agreement, the Trustee is under no duty or
obligation (a) to determine whether any of the documents specified in clauses
(v), (vi), (vii), (viii), (x), (xiv), (xv), (xvii), (xviii), (xix) and (xxiii)
through (xxv) of the definition of "Mortgage File" exist or are required to be
delivered by the Depositor, the Mortgage Loan Sellers or any other Person or (b)
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 genuine, enforceable, sufficient to perfect and maintain the
perfection of a security interest or appropriate for the represented purpose or
that they are other than what they purport to be on their face.
Capitalized terms used but not defined herein shall the respective
meanings set forth in the Agreement.
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
____________________________________
[____________________]
Corporate Trust Officer
EXHIBIT W
FORM OF NOTICE RELATING TO THE NON-SERVICED WHOLE LOAN
May 3, 2007
[ADDRESSEES:
With respect to each of the Non-Serviced Mortgage Loans, to each of:
Non-Serviced Mortgage Loan Servicer, and
Non-Serviced Mortgage Loan Trustee.
Re: GE Commercial Mortgage Corporation, Commercial Mortgage Pass-Through
Certificates, Series 2007-C1 and each of the Non-Serviced Mortgage
Loans
Dear [NAME]:
GE Commercial Mortgage Corporation, Commercial Mortgage Pass-Through
Certificates, Series ▇▇▇▇-▇▇ (▇▇▇ "▇▇▇▇▇ ▇▇▇▇") is the holder of (i) the Skyline
Portfolio Mortgage Loan (the "Skyline Portfolio Mortgage Loan"), as such term is
defined under that Amended and Restated Intercreditor and Servicing Agreement,
dated as of April 1, 2007, by and among [Bank of America, National Association
("Bank of America"), as Lead Lender, A-2 Co-Lender and A-3 Co-Lender] (the
"Skyline Portfolio Co-Lender Agreement"), (ii) the Four Seasons Resort Maui
Mortgage Loan (the "Four Seasons Resort Maui Mortgage Loan"), as such term is
defined under the Intercreditor and Servicing Agreement, dated as of March 1,
2007, by and among [Bank of America as Lead Lender, Note A-2 Co-Lender and Note
A-3 Co-Lender (the "Four Seasons Resort Maui Co-Lender Agreement"),] (iii) the
Pacific Shores Mortgage Loan (the "Pacific Shores Mortgage Loan"), as such term
is defined under the Intercreditor Agreement (Pacific Shores), dated as of
February 1, 2007, by and among [CWCapital LLC as lead lender and co-lender] (the
"Pacific Shores Co-Lender Agreement"), (iv) the Mall of America Mortgage Loan
(the "Mall of America Mortgage Loan"), as such term is defined under the
Intercreditor Agreement (Mall of America), dated as of December 7, 2006, (the
Mall of America Co-Lender Agreement") and (v) the Americold Portfolio Mortgage
Loan (the "Americold Portfolio Mortgage Loan"), as such term is defined under
the Intercreditor Agreement (Americold Portfolio), dated February 28, 2007, (the
"Americold Portfolio Co-Lender Agreement"), . In connection with the deposit of
each of the Skyline Portfolio Mortgage Loan, the Four Seasons Resort Maui
Mortgage Loan, the Pacific Shores Mortgage Loan, the Mall of America Mortgage
Loan and the Americold Portfolio Mortgage Loan (collectively, the "Non-Serviced
Mortgage Loans") into the Trust Fund, the contact information for each of the
parties thereto is set forth on Schedule I attached hereto.
The Skyline Portfolio Mortgage Loan and the Pacific Shores Mortgage
Loan are being serviced pursuant to the terms of a pooling and servicing
agreement dated and effective as of February 1, 2007, among Banc of America
Commercial Mortgage Inc., as depositor, Bank of America, National Association,
as master servicer, LNR Partners, Inc., as special servicer and LaSalle Bank
National Association, as trustee, as from time to time amended, supplemented or
modified (the "BACM 2007-1 Pooling Agreement"). ▇▇▇▇▇ Fargo Bank, National
Association, as Trustee for the Certificateholders, hereby directs the
applicable parties to the BACM 2007-1 Pooling Agreement as follows:
(i) Bank of America, National Association, as servicer under the
BACM 2007-1 Pooling Agreement, shall remit all amounts payable in accordance
with the Skyline Portfolio Co-Lender Agreement, the Pacific Shores Co-Lender
Agreement and the BACM 2007-1 Pooling Agreement due to the holder of the Skyline
Portfolio Mortgage Loan and the Pacific Shores Portfolio Mortgage Loan on such
days as specified in the BACM 2007-1 Pooling Agreement to KeyCorp Real Estate
Capital Markets, Inc., as Servicer of the Trust Fund, to the collection account
set forth on Schedule II attached hereto in accordance with the terms of the
BACM 2007-1 Pooling Agreement (or, with respect to a Balloon Payment, to the
Trustee for deposit into the related Distribution Account); and
(ii) Bank of America, National Association and LaSalle Bank National
Association shall forward, deliver or otherwise make available, as the case may
be, all reports, statements, documents, communications and other information
that are to be forwarded, delivered or otherwise made available to the holder of
the Skyline Portfolio Mortgage Loan and the Pacific Shores Mortgage Loan in
accordance with the Skyline Portfolio Co-Lender Agreement, the Pacific Shores
Co-Lender Agreement and the BACM 2007-1 Pooling Agreement to KeyCorp Real Estate
Capital Markets, Inc., as Servicer of the Trust Fund.
The Four Seasons Resort Maui Mortgage Loan is being serviced
pursuant to the terms of a pooling and servicing agreement dated and effective
as of March 1, 20067, among Citigroup Commercial Mortgage Securities, Inc., as
depositor, Wachovia Bank, National Association, as master servicer, LNR
Partners, Inc., as special servicer and ▇▇▇▇▇ Fargo Bank, N.A., as trustee, as
from time to time amended, supplemented or modified (the "CD 2007-CD4 Pooling
Agreement"). ▇▇▇▇▇ Fargo Bank, National Association, as Trustee for the
Certificateholders, hereby directs the applicable parties to the CD 2007-CD4
Pooling Agreement as follows:
(i) Wachovia Bank, National Association, as servicer under the CD
2007-CD4 Pooling Agreement, shall remit all amounts payable in accordance with
the Four Seasons Resort Maui Co-Lender Agreement and the CD 2007-C4 Pooling
Agreement due to the holder of the Four Seasons Resort Maui Mortgage Loan on
such days as specified in the CD 2007-CD4 Pooling Agreement to KeyCorp Real
Estate Capital Markets, Inc., as Servicer of the Trust Fund, to the collection
account set forth on Schedule II attached hereto in accordance with the terms of
the CD 2007-CD4 Pooling Agreement (or, with respect to a Balloon Payment, to the
Trustee for deposit into the related Distribution Account); and
(ii) Wachovia Bank, National Association and ▇▇▇▇▇ Fargo Bank, N.A.
shall forward, deliver or otherwise make available, as the case may be, all
reports, statements, documents, communications and other information that are to
be forwarded, delivered or otherwise made available to the holder of the Four
Seasons Resort Maui Mortgage Loan in accordance with the Four Seasons Resort
Maui Co-Lender Agreement and the CD 2007-CD4 Pooling Agreement to KeyCorp Real
Estate Capital Markets, Inc., as Servicer of the Trust Fund.
The Mall of America Mortgage Loan is being serviced pursuant to the
terms of a pooling and servicing agreement dated and effective as of December 1,
2006, among Deutsche Mortgage & Asset Receiving Corporation,, as depositor,
Midland Loan Services, Inc., as master servicer, LNR Partners, Inc., as special
servicer and LaSalle Bank, National Association, as trustee, as from time to
time amended, supplemented or modified (the "COMM 2006-C8 Pooling Agreement").
▇▇▇▇▇ Fargo Bank, National Association, as Trustee for the Certificateholders,
hereby directs the applicable parties to the COMM 2006-C8 Pooling Agreement as
follows:
(i) Midland Loan Services, Inc., as servicer under the COMM 2006-C8
Pooling Agreement, shall remit all amounts payable in accordance with the Mall
of America Co-Lender Agreement and the COMM 2006-C8 Pooling Agreement due to the
holder of the Mall of America Mortgage Loan on such days as specified in the
COMM 2006-C8 Pooling Agreement to KeyCorp Real Estate Capital Markets, Inc., as
Servicer of the Trust Fund, to the collection account set forth on Schedule II
attached hereto in accordance with the terms of the COMM 2006-C8 Pooling
Agreement (or, with respect to a Balloon Payment, to the Trustee for deposit
into the related Distribution Account); and
(ii) Midland Loan Services, Inc. and LaSalle Bank, National
Association shall forward, deliver or otherwise make available, as the case may
be, all reports, statements, documents, communications and other information
that are to be forwarded, delivered or otherwise made available to the holder of
the Mall of America Mortgage Loan in accordance with the Mall of America
Co-Lender Agreement and the COMM 2006-C8 Pooling Agreement to KeyCorp Real
Estate Capital Markets, Inc., as Servicer of the Trust Fund.
The Americold Portfolio Mortgage Loan is being serviced pursuant to
the terms of a pooling and servicing agreement dated and effective as of
[_____], among ▇.▇. ▇▇▇▇▇▇ Chase Commercial Mortgage Securities Corp., as
depositor, Midland Loan Services, Inc., as master servicer, LNR Partners, Inc.,
as special servicer and ▇▇▇▇▇ Fargo Bank, National Association, as trustee, as
from time to time amended, supplemented or modified (the "JPMCC 2007-CIBC18
Pooling Agreement"). ▇▇▇▇▇ Fargo Bank, National Association, as Trustee for the
Certificateholders, hereby directs the applicable parties to the JPMCC
2007-CIBC18 Pooling Agreement as follows:
(i) Midland Loan Services, Inc., as servicer under the JPMCC
2007-CIBC18 Pooling Agreement, shall remit all amounts payable in accordance
with the Americold Portfolio Co-Lender Agreement and the JPMCC 2007-CIBC18
Pooling Agreement due to the holder of the Americold Portfolio Mortgage Loan on
such days as specified in the JPMCC 2007-CIBC18 Pooling Agreement to KeyCorp
Real Estate Capital Markets, Inc., as Servicer of the Trust Fund, to the
collection account set forth on Schedule II attached hereto in accordance with
the terms of the JPMCC 2007-CIBC18 Pooling Agreement (or, with respect to a
Balloon Payment, to the Trustee for deposit into the related Distribution
Account); and
(ii) Midland Loan Services, Inc. and ▇▇▇▇▇ Fargo Bank, National
Association shall forward, deliver or otherwise make available, as the case may
be, all reports, statements, documents, communications and other information
that are to be forwarded, delivered or otherwise made available to the holder of
the Americold Portfolio Mortgage Loan in accordance with the Americold Portfolio
Co-Lender Agreement and the JPMCC 2007-CIBC18 Pooling Agreement to KeyCorp Real
Estate Capital Markets, Inc., as Servicer of the Trust Fund.
Capitalized terms used but not defined herein shall have the
respective meanings set forth in the pooling and servicing agreement relating to
the GE Commercial Mortgage Corporation, Commercial Mortgage Pass-Through
Certificates, Series 2007-C1.
Thank you for your attention to this matter.
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as Trustee for the Holders of the GE
Commercial Mortgage Corporation,
Commercial Mortgage Pass-Through
Certificates, Series 2007-C1
By:_________________________________
[Name]
[Title]
EXHIBIT X
FORM OF NOTICE AND CERTIFICATION REGARDING
DEFEASANCE OF MORTGAGE
For Mortgage Loans either (a)(i) having a Stated Principal Balance of
$20,000,000 or less or (ii) having an aggregate Stated Principal Balance of
5% or less of all of the Mortgage Loans, whichever is less or (b) that are
not, as of the dated hereof, one of the ten largest loans by Stated Principal
Balance
To: Standard & Poor's Rating Services
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Commercial Mortgage Surveillance
From: [KeyCorp Real Estate Capital Markets, Inc., in its capacity as Servicer
(the "Servicer")] [Bank of America, National Association, in its capacity
as Servicer (the "Servicer")], under the Pooling and Servicing Agreement
dated as of May 1, 2007 (the "Pooling and Servicing Agreement"), among the
Servicer, ▇▇▇▇▇ Fargo Bank, National Association, as Trustee, and others.
Date: __________, 20__
Re: GE Commercial Mortgage Corporation Commercial Mortgage Pass-Through
Certificates Series 2007-C1
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.
As 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 payments scheduled to be due in
respect of the entire principal balance of the Mortgage
Loan; or
____ a partial defeasance of the payments scheduled to be due
in respect of a portion of the principal balance of the
Mortgage Loan that represents ___% of the entire
principal balance of the Mortgage Loan and, under the
Mortgage, has an allocated loan amount of $____________
or _______% of the entire principal balance;
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 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. Such
securities have the characteristics set forth below:
CUSIP____ RATE____ MAT____ PAY DATES____ ISSUED
d. The Servicer received an Opinion of Counsel (from
counsel approved by Servicer in accordance with the
Servicing Standard) that the defeasance will not result
in an Adverse REMIC Event.
e. The Servicer determined that the defeasance collateral
will be owned by an entity (the "Defeasance Obligor") as
to which one of the statements checked below is true:
____ the related Mortgagor was 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.
____ the related Mortgagor designated a Single-Purpose
Entity (as defined in the S&P Criteria) to own the
defeasance collateral; or
____ the Servicer designated a Single-Purpose Entity
(as defined in the S&P Criteria) established for
the benefit of the Trust to own the defeasance
collateral.
f. The Servicer received a broker confirmation or
similar confirmation of the credit, or the
accountant's letter described below contained
statements that it reviewed a broker confirmation or
similar confirmation of the credit, 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 the Trustee acting as a securities intermediary.
g. As securities intermediary, Trustee is obligated to
make the scheduled payments on the Mortgage Loan from
the proceeds of the defeasance collateral directly to
the 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").
h. The Servicer received from the Mortgagor written
confirmation from a firm of independent certified
public accountants, who were approved by Servicer in
accordance with the accepted Servicing Standard
stating that (i) revenues from principal and interest
payments made on the defeasance collateral (without
taking into account any earnings on reinvestment of
such revenues) will be sufficient to timely pay each
of the Scheduled Payments after the defeasance
including the payment in full of the Mortgage Loan
(or the allocated portion thereof in connection with
a partial defeasance) on its Maturity Date, (ii) the
revenues received in any month from the defeasance
collateral will be applied to make Scheduled Payments
within four (4) months after the date of receipt, and
(iii) interest income from the defeasance collateral
to the Defeasance Obligor in any calendar or fiscal
year will not exceed such Defeasance Obligor's
interest expense for the Mortgage Loan (or the
allocated portion thereof in a partial defeasance)
for such year.
i. The Servicer received opinions from counsel, who were
approved by the Servicer in accordance with accepted
master servicing practices or accepted special
servicing practices, as applicable, that (i) the
agreements executed by the Mortgagor and/or the
Defeasance Obligor in connection with the defeasance
are enforceable against them in accordance with their
terms, and (ii) the Trustee will have a perfected,
first priority security interest in the defeasance
collateral described above.
j. The agreements executed in connection with the
defeasance (i) permit reinvestment of proceeds of the
defeasance collateral only in Permitted Investments
(as defined in the S&P Criteria), (ii) permit release
of surplus defeasance collateral and earnings on
reinvestment to the Defeasance Obligor or the
Mortgagor only after the Mortgage Loan has been paid
in full, if any such release is permitted,
(iii) prohibit any subordinate liens against the
defeasance collateral, and (iv) 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.
k. The entire principal balance of the Mortgage Loan as
of the date of defeasance was $___________, which is
[$20,000,000 or less or five percent or less of the
aggregate Stated Principal Balance of all Mortgage
Loans, whichever is less] [not, as of the date
hereof, one of the ten largest Mortgage Loans by
Stated Principal Balance]*, as of the date of the
most recent Statement to Certificateholders received
by us (the "Current Report").
l. 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, in addition to the foregoing, the Servicer has
imposed such additional conditions to the defeasance, subject
to the limitations imposed by the Mortgage Loan documents, as
are consistent with the accepted Servicing Standard.
4. 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 described above and that originals or copies of
such agreements, instruments and opinions have been
transmitted to the Trustee for placement in the related
Mortgage File or, to the extent not required to be part of
the related Mortgage File, are in the possession of the
Servicer as part of the Servicer's Mortgage File.
----------------------------
* Insert appropriate clause.
5. Certify and confirm that the determinations and certifications
described above were rendered in accordance with the accepted
Servicing Standard set forth in, and the other applicable
terms and conditions of, the Pooling and Servicing Agreement.
6. Certify that the individual under whose hand the Servicer has
caused this Notice and Certification to be executed did
constitute a Servicing Officer as of the date of the
defeasance described above.
7. Agree to provide copies of all items listed on [Exhibit B]
hereto to you upon request.
IN WITNESS WHEREOF, the Servicer has caused this Notice and
Certification to be executed as of the date captioned above.
SERVICER:______________________________
By:____________________________________
Name:
Title
SCHEDULE 1
Computerized Database Information
[to be conformed to CMSA Set-Up File]
Field
Identification Number
Property Type
Property City and State
Year Built
Year Renovated
Occupancy Rate as Of ___
Total Square Feet
Number of units
Original Principal Balance
Prepayment Premium
Note Rate
Annual Debt Service
Current DSCR
Appraised Value (MAI)
Cut-off LTV (MAI)
LTV at Maturity (MAI)
Annual Reserves per Square Foot/Unit
Origination Date
Maturity Date
(Original) Loan Balance Per SF or Per Unit
Current Unpaid Principal Balance
2007 Actual or Rolling 12 Month NOI
Actual Current Annual Net Operating Income
Current Statement Date
Originator
SCHEDULE 2
Mortgage Loans Containing Additional Debt
Existing Additional Debt
1 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
4 Skyline Portfolio
8 Four Seasons Resort Maui
9 Pacific Shores
▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
12 Galleria Officentre
15 Palma Sorrento Apartments
18 Villa Veneto Apartments
21 Magic Sands Mobile Home Park
24 Americold Portfolio
41 Clarion LaGuardia Airport Hotel
49 Columbia Hotel Portfolio
60 ▇▇▇▇▇ ▇▇▇▇▇▇ Mobile Home Park
▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MHP
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ Jolla
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ MHP Portfolio
155 The ▇▇▇▇▇▇▇ Works
179 Holland Gardens Apartments
Future Additional Debt
1 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
2 Wolfchase Galleria
8 Four Seasons Resort Maui
17 Presbyterian Plano Medical ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
26 Sealy NW Business Center
27 1604 Broadway
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Hotel
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
40 Cypress Crossroads
42 Media Center
43 Westchester Portfolio
50 New Trier Indianapolis
51 New Trier Bakersfield
52 New Trier ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (HSBC)
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Portfolio
71 The Pointe at Wimbledon
86 Barloworld Distribution
90 Cypress ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
115 229 Fabricante
155 The ▇▇▇▇▇▇▇ Works
158 ▇▇▇▇▇ Industrial Portfolio
SCHEDULE 3
Mortgage Loans which Initially Pay Interest Only
Original Interest
Only Period
Loan ID Property Name (Months)
1 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 120
2 Wolfchase Galleria 120
3 Manhattan Apartment Portfolio 60
4 Skyline Portfolio 120
7 ▇▇ ▇▇▇▇▇▇ Portfolio 120
8 Four Seasons Resort Maui 84
9 Pacific Shores 60
6 The Enclave 60
10 Wellpoint ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ 120
12 Galleria Officentre 24
13 ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 120
15 Palma Sorrento Apartments 120
16 National Envelope 24
17 Presbyterian Plano Medical Office 60
18 Villa Veneto Apartments 120
19 Doubletree Irvine Spectrum ▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇ Magic Sands Mobile Home Park 120
22 ▇▇▇▇▇▇▇ Village 12
23 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 60
24 Americold Portfolio 109
25 5 Marine View ▇▇▇▇▇ ▇▇
▇▇ ▇▇▇▇▇ ▇▇ Business Center 60
27 1604 Broadway 36
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Hotel ▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ 120
32 7700 Leesburg Pike ▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇ 12
34 Springhill Suites - Elmhurst 12
35 5200 Alameda 36
36 Orchard Heights 60
37 ▇▇▇▇▇▇▇▇▇ 120
38 Ocotillo Plaza 120
39 Deerfield Luxury Townhomes 72
40 Cypress Crossroads 36
41 Clarion LaGuardia Airport Hotel 24
42 Media Center 60
43 Westchester Portfolio ▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇ Backlick Plaza 120
46 Mansions at Round Rock ▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇ MWD Bolingbrook Industrial 60
49 Columbia Hotel Portfolio 36
50 New Trier Indianapolis 48
51 New Trier Bakersfield 48
52 New Trier ▇▇▇▇▇▇ ▇▇
▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ 36
54 5th Avenue Station ▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇ Raytheon ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ 120
59 Arcadis - ▇▇▇ ▇▇ ▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Mobile Home Park 120
62 Juniper Portfolio-Cumberland 36
63 Juniper Portfolio-Lakehurst 36
64 The ▇▇▇▇▇▇▇▇▇▇ 60
65 ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (HSBC) 120
66 River Park Apartments 120
68 Albuquerque Portfolio ▇▇
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇ The Pointe at Wimbledon 120
72 Rialto I & II MHCs 120
73 Highlands MHC 120
74 Harbour Run Apartments 36
77 Remcon Medical Office Portfolio 36
78 Fountain ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Glenview 24
80 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MHP 24
82 Tri Park Portfolio 120
83 Shoppes at ▇▇▇▇ Park 60
85 2400 Augusta Office Building 60
86 Barloworld Distribution 120
87 Nova Stor Self Storage 120
90 Cypress Center ▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇ One Airport Center 60
94 700-710 Pelham Parkway 120
95 Chestnut Court Apartments 120
96 Summer & Bedford ▇▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ 120
Hilton Village Shopping Center and
98 Hilton ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ 60
101 PetsMart/Staples 120
103 North Valley Self Storage 120
104 Cortina Inn & Resort 12
105 Ohio MHP Portfolio 24
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 60
107 North Empire Self Storage 48
108 ▇▇▇▇▇ Building 72
110 ▇▇▇▇▇▇▇▇ Apartments 36
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ Jolla ▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇ Shops Under Target 5
118 ▇▇▇▇ MHP 120
121 Conch Plaza 60
122 Tamarack ▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇ Powers Professional Campus 120
128 Paragon Building 120
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ Apartments 60
131 ▇▇▇▇▇ Corning Industrial 120
135 Harbor Landing 120
136 Hidden Village MHC 120
139 Claycreek Mini Storage 60
141 Holiday Inn Express Six Flags 24
142 JMT Warehouse 36
143 Premier Self Storage -Toa Baja 60
145 Lady Lake Shoppes 120
148 Mission Viejo Town Center Phase 4 36
Northstate Storage Portfolio ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇ 120
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 60
153 ▇▇▇▇▇▇▇▇▇ Office Building 120
154 ▇▇. ▇▇▇ ▇▇▇▇ Self Storage 120
155 The ▇▇▇▇▇▇▇ Works 120
157 ▇▇▇▇▇▇▇▇ Gardens 60
158 ▇▇▇▇▇ Industrial Portfolio 36
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ 24
160 Ashford Atrium 36
Northstate Storage Portfolio Carolina
162 Beach 48
164 Rite Aid - 302 ▇▇▇▇ ▇▇▇▇ 12
165 Best Buy Stevens Point Wisconsin 36
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MHC 60
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇, ▇▇ 120
174 14405 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MHC 60
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Apartments 24
180 Roman Gardens Apartments 60
181 The Atrium Offices 60
182 Briarwood MHC 60
184 Northern Tool Building 60
186 1242 ▇▇▇▇▇▇ Street 60
187 ▇▇▇▇▇ ▇▇▇▇ Building 12
190 306-308 ▇▇▇▇▇▇▇▇▇▇▇▇▇ Avenue 36
Northstate Storage Portfolio Mineral
191 Springs 48
193 Northstate Storage Portfolio Swansboro 48
198 Whispering ▇▇▇▇▇ ▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ 60
201 730 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Highway 36
SCHEDULE 4
Mortgage Loans with Environmental Insurance Policies
Loan Property Name Environmental Insurance
ID (Y/N/R)
6 The Enclave Yes
16 National Envelope Various
16.1 ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ Yes
16.5 ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Yes
SCHEDULE 5
RATES TO BE USED IN DETERMINING CLASS X-C AND CLASS X-P PASS THROUGH RATES
Distribution Date Reference Rate Distribution Date Reference Rate
----------------- -------------- ----------------- --------------
June 2007 5.95520% May 2009 5.73580%
July 2007 5.76230% June 2009 5.92930%
August 2007 5.95530% July 2009 5.75400%
September 2007 5.95530% August 2009 5.94760%
October 2007 5.76230% September 2009 5.94760%
November 2007 5.95530% October 2009 5.75400%
December 2007 5.76230% November 2009 5.94760%
January 2008 5.95530% December 2009 5.75400%
February 2008 5.76310% January 2010 5.75480%
March 2008 5.76160% February 2010 5.75480%
April 2008 5.95530% March 2010 5.75070%
May 2008 5.76230% April 2010 5.94380%
June 2008 5.95530% May 2010 5.75010%
July 2008 5.76230% June 2010 5.94360%
August 2008 5.95530% July 2010 5.74820%
September 2008 5.95530% August 2010 5.94160%
October 2008 5.76230% September 2010 5.94160%
November 2008 5.95530% October 2010 5.74820%
December 2008 5.74250% November 2010 5.94160%
January 2009 5.74330% December 2010 5.74820%
February 2009 5.74310% January 2011 5.74900%
March 2009 5.76090% February 2011 5.74900%
April 2009 5.92780% March 2011 5.75010%
Distribution Date Reference Rate Distribution Date Reference Rate
----------------- -------------- ----------------- --------------
April 2011 5.94190% November 2012 5.92060%
May 2011 5.74840% December 2012 5.72910%
June 2011 5.94190% January 2013 5.72990%
July 2011 5.74840% February 2013 5.72990%
August 2011 5.94190% March 2013 5.72780%
September 2011 5.94190% April 2013 5.92060%
October 2011 5.74780% May 2013 5.72910%
November 2011 5.94120% June 2013 5.92060%
December 2011 5.74540% July 2013 5.72840%
January 2012 5.93500% August 2013 5.92060%
February 2012 5.74890% September 2013 5.92060%
March 2012 5.74960% October 2013 5.72910%
April 2012 5.92060% November 2013 5.92060%
May 2012 5.72910% December 2013 5.72910%
June 2012 5.92060% January 2014 5.72990%
July 2012 5.72910% February 2014 5.73360%
August 2012 5.92060% March 2014 5.73150%
September 2012 5.92060% April 2014 5.92430%
October 2012 5.72910% May 2014 5.73280
SCHEDULE 6
Class A-AB Planned Principal Balance Table
Distribution Date Ending Balance ($) Distribution Date Ending Balance ($)
----------------- ------------------ ----------------- ------------------
June 2007 54,898,000.00 June 2009 54,898,000.00
July 2007 54,898,000.00 July 2009 54,898,000.00
August 2007 54,898,000.00 August 2009 54,898,000.00
September 2007 54,898,000.00 September 2009 54,898,000.00
October 2007 54,898,000.00 October 2009 54,898,000.00
November 2007 54,898,000.00 November 2009 54,898,000.00
December 2007 54,898,000.00 December 2009 54,898,000.00
January 2008 54,898,000.00 January 2010 54,898,000.00
February 2008 54,898,000.00 February 2010 54,898,000.00
March 2008 54,898,000.00 March 2010 54,898,000.00
April 2008 54,898,000.00 April 2010 54,898,000.00
May 2008 54,898,000.00 May 2010 54,898,000.00
June 2008 54,898,000.00 June 2010 54,898,000.00
July 2008 54,898,000.00 July 2010 54,898,000.00
August 2008 54,898,000.00 August 2010 54,898,000.00
September 2008 54,898,000.00 September 2010 54,898,000.00
October 2008 54,898,000.00 October 2010 54,898,000.00
November 2008 54,898,000.00 November 2010 54,898,000.00
December 2008 54,898,000.00 December 2010 54,898,000.00
January 2009 54,898,000.00 January 2011 54,898,000.00
February 2009 54,898,000.00 February 2011 54,898,000.00
March 2009 54,898,000.00 March 2011 54,898,000.00
April 2009 54,898,000.00 April 2011 54,898,000.00
May 2009 54,898,000.00 May 2011 54,898,000.00
Distribution Date Ending Balance ($) Distribution Date Ending Balance ($)
----------------- ------------------ ----------------- ------------------
June 2011 54,898,000.00 August 2013 36,229,681.05
July 2011 54,898,000.00 September 2013 35,115,176.55
August 2011 54,898,000.00 October 2013 33,877,651.03
September 2011 54,898,000.00 November 2013 32,751,339.06
October 2011 54,898,000.00 December 2013 31,502,329.55
November 2011 54,898,000.00 January 2014 30,502,329.55
December 2011 54,898,000.00 February 2014 29,502,329.55
January 2012 54,898,000.00 March 2014 28,290,510.78
February 2012 54,898,000.00 April 2014 27,155,425.41
March 2012 54,898,000.00 May 2014 25,900,174.49
April 2012 54,294,006.37 June 2014 24,753,096.15
May 2012 53,174,376.35 July 2014 23,486,180.85
June 2012 52,158,890.16 August 2014 22,326,990.74
July 2012 51,021,636.64 September 2014 21,161,984.92
August 2012 49,982,277.16 October 2014 19,877,633.34
September 2012 48,937,702.34 November 2014 18,700,338.20
October 2012 47,768,877.11 December 2014 17,404,034.02
November 2012 46,713,195.04 January 2015 16,214,327.83
December 2012 45,533,566.89 February 2015 15,018,652.70
January 2013 44,460,134.65 March 2015 13,479,459.05
February 2013 43,386,948.25 April 2015 12,270,060.54
March 2013 41,952,077.02 May 2015 10,942,532.58
April 2013 40,866,298.97 June 2015 9,720,405.03
May 2013 39,656,712.90 July 2015 8,380,496.80
June 2013 38,559,412.06 August 2015 7,145,514.15
July 2013 37,338,618.87 September 2015 5,904,335.21
Distribution Date Ending Balance ($)
----------------- ------------------
October 2015 4,545,897.56
November 2015 3,291,674,80
December 2015 1,920,550,72
January 2016 653,154.95
February 2016 ------
SCHEDULE 7
Additional Form 10-D Disclosure
The parties identified in the "Party Responsible" column are
obligated pursuant to Section 11.06 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 any item below, possession) of such
information (other than information as to itself).
Item on Form 10-D Party Responsible
------------------------------------------------------------------------------------------------------------------
Distribution and Pool Performance Information: o Servicer (only with respect to 1121(a)(12) as to
o Only with respect to any information required non Specially Serviced Loans)
by 1121 which is NOT included on the o Special Servicer (only with respect to
Statement to Certificateholders 1121(a)(12) as to Specially Serviced Loans)
o Depositor
o Trustee
Item 2: Legal Proceedings: o Servicer (as to itself)
o Item 1117 of Regulation AB (to the extent o Special Servicer (as to itself)
material to Certificateholders) o Trustee (as to itself)
o Depositor (as to itself)
o Any other Reporting Servicer (as to itself)
o Trustee/Servicer/Depositor/Special Servicer
as to the Trust (in the case of the Servicer and
Special Servicer, to be reported by the party
controlling such litigation pursuant to Section
3.31)
o Each Mortgage Loan Seller as sponsor (as
defined in Regulation AB) (to be provided
by the Depositor)
o Originators under Item 1110 of Regulation AB (to
be provided by the Depositor)
o Any party under Item 1100(d)(1) of Regulation AB
(to be provided by the Depositor)
Item 3: Sale of Securities and Use of Proceeds o Depositor
Item 4: Defaults Upon Senior Securities o Trustee
Item 5: Submission of Matters to a Vote of Security o Trustee
Holders
Item 6: Significant Obligors of Pool Assets N/A
Item 7: Significant Enhancement Provider Information N/A
Item 8: Other Information (information required to o Any party responsible for disclosure items on Form
be disclosed on Form 8-K that was not properly 8-K to the extent of such items
disclosed)
Item 9: Exhibits o Depositor
o Trustee
SCHEDULE 8
Additional Form 10-K Disclosure
The parties identified in the "Party Responsible" column are
obligated pursuant to Section 11.07 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 any item below, possession) of such
information (other than information as to itself).
Item on Form 10-K Party Responsible
-----------------------------------------------------------------------------------------------------------------------
Item 1B: Unresolved Staff Comments o Depositor
Item 9B: Other Information (information required to o Any party responsible for disclosure items on Form
be disclosed on Form 8-K that was not properly 8-K to the extent of such items
disclosed)
Item 15: Exhibits, Financial Statement Schedules o Trustee
o Depositor
Additional Item: o Servicer (as to itself)
o Special Servicer (as to itself)
Disclosure per Item 1117 of Regulation AB (to the o Trustee (as to itself)
extent material to Certificateholders) o Depositor (as to itself)
o Any other Reporting Servicer (as to itself)
o Trustee/Servicer/Depositor/Special Servicer as to
the Trust (in the case of the Servicer and the
Special Servicer to be reported by the party
controlling such litigation pursuant to Section
3.31)
o Each Mortgage Loan Seller as sponsor (as defined in
Regulation AB) (to be provided by the Depositor)
o Originators under Item 1110 of Regulation AB (to be
provided by the Depositor)
o Party under Item 1100(d)(1) of Regulation AB (to be
provided by the Depositor)
Additional Item: o Servicer (as to itself) (to the extent material to
Disclosure per Item 1119 of Regulation AB Certificateholders and only as to affiliations
under 1119(a) with the Trustee, Special Servicer or
a sub-servicer meeting any of the descriptions in
Item 1108(a)(3))
o Special Servicer (as to itself)
o Trustee (as to itself)
o Depositor (as to itself)
o Trustee/Servicer/Depositor/Special Servicer as to
the Trust
o Each Seller as sponsors (as defined in Regulation
AB) (to be provided by the Depositor)
o Originators under Item 1110 of Regulation AB (to be
provided by the Depositor)
o Party under Item 1100(d)(1) of Regulation AB (to be
provided by the Depositor)
Additional Item: N/A
Disclosure per Item 1112(b) of Regulation AB
Additional Item: o Depositor
Disclosure per Items 1114(b) and 1115(b) of o Trustee
Regulation AB
SCHEDULE 9
Form 8-K Disclosure Information
The parties identified in the "Party Responsible" column are
obligated pursuant to Section 11.09 of the Pooling and Servicing Agreement to
report to the Depositor and the Trustee the occurrence of any event described in
the corresponding Form 8-K Item described in the "Item on Form 8-K" column to
the extent such party has actual knowledge of such information (other than
information as to itself).
Item on Form 8-K Party Responsible
------------------------------------------------------------------------------------------------------------------
Item 1.01- Entry into a Material Definitive o Trustee/Servicer/Depositor/Special Servicer
Agreement as to the Trust (only as to the agreements
such entity is a party to or entered into on
behalf of the Trust)
Item 1.02- Termination of a Material Definitive o Trustee/Servicer/Depositor/Special Servicer
Agreement as to the Trust (only as to the agreements
such entity is a party to or entered into on
behalf of the Trust)
Item 1.03- Bankruptcy or Receivership o Depositor
Item 2.04- Triggering Events that Accelerate or o Depositor
Increase a Direct Financial Obligation or an o Trustee
Obligation under an Off-Balance Sheet Arrangement
Item 3.03- Material Modification to Rights of o Trustee
Security Holders
Item 5.03- Amendments of Articles of Incorporation o Depositor
or Bylaws; Change of Fiscal Year
Item 6.01- ABS Informational and Computational o Depositor
Material
Item 6.02- Change of Servicer or Trustee o Servicer (as to itself or a servicer
retained by it)
o Special Servicer (as to itself or a servicer
retained by it)
o Trustee
o Depositor
Item 6.03- Change in Credit Enhancement or External o Depositor
Support o Trustee
Item 6.04- Failure to Make a Required Distribution o Trustee
Item 6.05- Securities Act Updating Disclosure o Depositor
Item 7.01- Regulation FD Disclosure o Depositor
Item 8.01 o Depositor
Item 9.01 o Depositor
SCHEDULE 10
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":
Relevant Applicable
Servicing Criteria Party(ies)
--------------------------------------------------------------------------------------------------------------------
Reference Criteria
--------------------------------------------------------------------------------------------------------------------
General Servicing Considerations
1122(d)(1)(i) Policies and procedures are instituted to monitor any performance or Trustee
other triggers and events of default in accordance with the transaction Servicer
agreements. Special Servicer
1122(d)(1)(ii) If any material servicing activities are outsourced to third parties, Trustee
policies and procedures are instituted to monitor the third party's Servicer
performance and compliance with such servicing activities. Special Servicer
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a back-up N/A
servicer for the mortgage loans are maintained.
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect on the Servicer
party participating in the servicing function throughout the reporting Special Servicer
period in the amount of coverage required by and otherwise in
accordance with the terms of the transaction agreements.
Cash Collection and Administration
1122(d)(2)(i) Payments on mortgage loans are deposited into the appropriate custodial Trustee
bank accounts and related bank clearing accounts no more than two Servicer
business days following receipt, or such other number of days specified Special Servicer
in the transaction agreements.
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or to an Trustee
investor are made only by authorized personnel.
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash flows or Servicer
distributions, and any interest or other fees charged for such Special Servicer
advances, are made, reviewed and approved as specified in the Trustee
transaction agreements.
1122(d)(2)(iv) The related accounts for the transaction, such as cash reserve accounts Trustee
or accounts established as a form of overcollateralization, are Servicer
separately maintained (e.g., with respect to commingling of cash) as Special Servicer
set forth in the transaction agreements.
1122(d)(2)(v) Each custodial account is maintained at a federally insured depository Trustee
institution as set forth in the transaction agreements. For purposes of Servicer
this criterion, "federally insured depository institution" with respect Special Servicer
to a foreign financial institution means a foreign financial
institution that meets the requirements of Rule 13k-1(b)(1) of the
Securities Exchange Act.
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized access. Servicer
Special Servicer
Trustee
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all asset-backed
securities related bank accounts, including custodial accounts and Trustee
related bank clearing accounts. These reconciliations are (A) Servicer
mathematically accurate; (B) prepared within 30 calendar days after the Special Servicer
bank statement cutoff date, or such other number of days specified in
the transaction agreements; (C) reviewed and approved by someone other
than the person who prepared the reconciliation; and (D) contain
explanations for reconciling items. These reconciling items are
resolved within 90 calendar days of their original identification, or
such other number of days specified in the transaction agreements.
Investor Remittances and Reporting
1122(d)(3)(i) Reports to investors, including those to be filed with the Commission, Trustee
are maintained in accordance with the transaction agreements and
applicable Commission requirements. Specifically, such reports (A) are
prepared in accordance with timeframes and other terms set forth in the
transaction agreements; (B) provide information calculated in
accordance with the terms specified in the transaction agreements; (C)
are filed with the Commission as required by its rules and regulations;
and (D) agree with investors' or the trustee's records as to the total
unpaid principal balance and number of mortgage loans serviced by the
Servicer.
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in accordance with Trustee
timeframes, distribution priority and other terms set forth in the
transaction agreements.
1122(d)(3)(iii) Disbursements made to an investor are posted within two business days Trustee
to the Servicer's investor records, or such other number of days
specified in the transaction agreements.
1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree with Trustee
cancelled checks, or other form of payment, or custodial bank
statements.
Pool Asset Administration
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as required by Trustee
the transaction agreements or related mortgage loan documents. Servicer
Special Servicer
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as required by the Trustee
transaction agreements. Special Servicer
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are made, Trustee
reviewed and approved in accordance with any conditions or requirements Special Servicer
in the transaction agreements.
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in accordance Servicer
with the related mortgage loan documents are posted to the Servicer's
obligor records maintained no more than two business days after
receipt, or such other number of days specified in the transaction
agreements, and allocated to principal, interest or other items (e.g.,
escrow) in accordance with the related mortgage loan documents.
1122(d)(4)(v) The Servicer's records regarding the mortgage loans agree with the Servicer
Servicer's records with respect to an obligor's unpaid principal
balance.
1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's mortgage Servicer
loans (e.g., loan modifications or re-agings) are made, reviewed and Special Servicer
approved by authorized personnel in accordance with the transaction
agreements and related pool asset documents.
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans, Special Servicer
modifications and deeds in lieu of foreclosure, foreclosures and
repossessions, as applicable) are initiated, conducted and concluded in
accordance with the timeframes or other requirements established by the
transaction agreements.
1122(d)(4)(viii) Records documenting collection efforts are maintained during the period Servicer
a mortgage loan is delinquent in accordance with the transaction Special Servicer
agreements. Such records are maintained on at least a monthly basis, or
such other period specified in the transaction agreements, and describe
the entity's activities in monitoring delinquent mortgage loans
including, for example, phone calls, letters and payment rescheduling
plans in cases where delinquency is deemed temporary (e.g., illness or
unemployment).
1122(d)(4)(ix) Adjustments to interest rates or rates of return for mortgage loans Servicer
with variable rates are computed based on the related mortgage loan
documents.
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as escrow Servicer
accounts): (A) such funds are analyzed, in accordance with the
obligor's mortgage loan documents, on at least an annual basis, or such
other period specified in the transaction agreements; (B) interest on
such funds is paid, or credited, to obligors in accordance with
applicable mortgage loan documents and state laws; and (C) such funds
are returned to the obligor within 30 calendar days of full repayment
of the related mortgage loans, or such other number of days specified
in the transaction agreements.
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or insurance Servicer
payments) are made on or before the related penalty or expiration
dates, as indicated on the appropriate bills or notices for such
payments, provided that such support has been received by the servicer
at least 30 calendar days prior to these dates, or such other number of
days specified in the transaction agreements.
1122(d)(4)(xii) Any late payment penalties in connection with any payment to be made on Servicer
behalf of an obligor are paid from the servicer's funds and not charged
to the obligor, unless the late payment was due to the obligor's error
or omission.
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted within two Servicer
business days to the obligor's records maintained by the servicer, or
such other number of days specified in the transaction agreements.
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are recognized Servicer
and recorded in accordance with the transaction agreements.
1122(d)(4)(xv) Any external enhancement or other support, identified in Item N/A
1114(a)(1) through (3) or Item 1115 of Regulation AB, is maintained as
set forth in the transaction agreements.
SCHEDULE 11
Additional Disclosure Notification
**SEND VIA FAX TO [XXX-XXX-XXXX] AND VIA EMAIL TO [________________________]
AND VIA OVERNIGHT MAIL TO THE ADDRESS IMMEDIATELY BELOW**
▇▇▇▇▇ Fargo Bank, National Association
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Global Securities and Trust Services- [DEAL NAME]--SEC REPORT PROCESSING
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 May 1, 2007, among GE Commercial Mortgage Corporation, as
depositor, KeyCorp Real Estate Capital Markets, Inc., as a servicer, Bank of
America, National Association, as a servicer, LNR Partners, Inc., as special
servicer and ▇▇▇▇▇ Fargo Bank, National Association, as trustee. 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:
SCHEDULE 12
Mortgage Loans for which a request for the disbursement of earnouts or
holdback amounts shall be submitted to the Special Servicer
Loan ID Property Name
13 ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
37 ▇▇▇▇▇▇▇▇▇
68 Albuquerque Portfolio
94 ▇▇▇-▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
136 Hidden Village MHC
139 Claycreek Mini Storage
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ MHC
SCHEDULE 13
Loan Seller Sub-Servicers
o Northmarq Capital, Inc.
o Holliday ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
o ▇.▇. Melody & Company of Texas, ▇▇
▇ ▇▇▇▇▇▇▇